2019Da238411 Building Name Map

A University

Attorney Kim Tae-tae, Counsel for the plaintiff-appellant

B

Law Firm Whitek, Counsel for the plaintiff-appellant

Attorney Seo-young

Seoul Northern District Court Decision 2018Na36319 Decided May 23, 2019

October 18, 2019

The judgment of the court below is reversed, and the case is remanded to the Seoul Northern District Court Panel Division.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Since it is an important matter directly related to the party's ability, standing, etc., in a lawsuit, the court which examines and determines the case shall, ex officio, confirm and proceed with the trial by which the party to the lawsuit is a party. If the plaintiff falsely expresses a person who has no capacity to be a party without accurately indicating the party's identity, it is permissible to correct such indication to the extent recognized as identical, and even the appellate court should allow it. The court shall examine and determine the merits after receiving an application for correction of the party's indication to correct the party's identity. The court shall not immediately dismiss the lawsuit after the plaintiff dismissed the application (see, e.g., Supreme Court Decisions 96Da3852, Oct. 11, 1996; 9Du2017, Nov. 13, 2001; 2012Da68279, Aug. 22, 2013; 2012Da60716, Feb. 16, 2017>

2. Review of the reasoning of the lower judgment and the record reveals the following facts.

A. The Plaintiff is a school established and managed by school juristic person F.

B. From around 2008, the Plaintiff leased real estate listed in the attached list of the lower judgment (hereinafter referred to as “instant real estate”) to the Defendant. On June 30, 2016, the Plaintiff concluded a lease contract again by setting the lease term as KRW 10 million with the Defendant, monthly rent of KRW 1907,00,000, and the lease term from July 1, 2016 to June 30, 2017.

C. On December 7, 2017, the Plaintiff filed the instant lawsuit against the Defendant and C on the grounds of the termination of the said lease agreement against the Defendant and C, seeking payment of unpaid rents and public charges. On August 14, 2018, the first instance court accepted the Plaintiff’s claim against the Defendant and rendered a judgment dismissing the Plaintiff’s claim against C. The only Defendant appealed against the first instance judgment.

D. In the lower judgment, the Defendant submitted an application for the correction of the indication of a party to the effect that the Plaintiff’s name as the Plaintiff did not have the ability to act as a party, and that on March 21, 2019, the Plaintiff asserted that the Defendant’s principal safety defense was not well-grounded, and that the correction of the indication of a party was to be made, and that the Plaintiff’s correction from “A University” to “F of the school foundation.”

E. On April 24, 2019, the lower court rendered a decision to dismiss an application filed by the Plaintiff for the correction of the Plaintiff’s indication, and on April 25, 2019, closed the pleadings, and rendered a judgment to dismiss the instant lawsuit on May 23, 2019 on the ground that the Plaintiff’s university, expressed as the Plaintiff, was a school foundation F, and only was established and managed by the school foundation F, and the relevant school cannot be recognized as a party’s ability.

3. We examine these facts in light of the legal principles as seen earlier. As recognized by the lower court, if a school juristic person F of A University is only a school established and operated by the school juristic person F of A University and has no capacity to be a party, the Plaintiff may correct the indication of the party through the correction of the party indication as “F of a school court with the capacity to be a party.” The lower court shall deliberate and decide on the merits after accepting the Plaintiff’s application for correction of the party indication. Nevertheless, the lower court dismissed the Plaintiff’s application for correction of the party indication on the ground that the Plaintiff’s party indication cannot be recognized. In so determining, it erred by misapprehending the legal principles on the correction of the party indication, which affected

4. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

The presiding judge shall keep the record of the Justice

Justices Lee Dong-won

Justices Park Jong-young

Justices Kim Gin-soo