In case where an attorney has reached a settlement in a lawsuit by including a legal relationship other than the relevant subject matter of lawsuit beyond the scope of his/her authority, whether it constitutes the “defect of power” under Article 427 of the Civil Procedure Act

Although an attorney-at-law, who was an attorney of the plaintiffs, was delegated only to the litigation case from the plaintiffs and was granted the authority to compromise only with respect to the real estate which is the object of the lawsuit, a request for re-adjudication based on the grounds that the legal relationship other than the object of the lawsuit was included in the scope of the said authority is ultimately a cause for lack of the special authorization necessary for the litigation act by the representative. Thus, Article 427 of the Civil Procedure Act

Articles 422(1)3 and 427 of the Civil Procedure Act

Supreme Court Decision 68Da1981 decided Dec. 3, 1968 (No. 163Sang272) 80Da584 decided Dec. 9, 1980 (Gong1981, 13456)

[Defendant-Appellant] Plaintiff 1 and four others, Counsel for defendant-appellant-appellant)

Defendant (Quasi-Appellant) 1 and 5 Defendants (Attorney Choi Yong-chul, Counsel for the defendant-appellant)

Incheon District Court Decision 92Na4789 delivered on May 21, 1993

All appeals are dismissed.

The costs of appeal shall be assessed against the plaintiff (quasi-Review plaintiff).

We examine the grounds of appeal by the Plaintiff (Quasi-Review Plaintiff, hereinafter referred to as the Plaintiff) by their attorneys.

Article 427 of the Civil Procedure Act refers to a case where there is no power of attorney, so the above Article does not apply if there is any defect in the special power of attorney necessary for conducting litigation even though the power of attorney exists, (see, e.g., Supreme Court Decision 68Da1981, Dec. 3, 1968; Supreme Court Decision 90Da584, Dec. 9, 1980; etc.). Accordingly, the court below did not err in the misapprehension of legal principles as to the above legal principles, even though the non-party, who was an attorney of the plaintiff, was delegated only to the litigation case and was granted the right to compromise only with respect to the real estate which was the object of the lawsuit, even though the non-party, who was an attorney of the plaintiff, was delegated only by the plaintiffs, was included in the legal relationship other than the subject matter of lawsuit and was therefore granted the right of attorney, which is ultimately subject to the quasi-adjudication of this case.

Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Yong-sung (Presiding Justice)