Whether Article 426 of the Civil Procedure Act applies to a lawsuit for a retrial on the ground that the representative of a clan has a defect in his/her power to represent the clan (negative)

According to Article 427 of the Civil Procedure Act, Article 426 of the Act on the Period of Filing a new trial does not apply to a lawsuit seeking a new trial on the ground of a defect of power of attorney, and the defect of power of attorney is deemed to include a defect of power of representative of a corporation or organization. As such, Article 422 (1) 3 of the Act on the ground that the representative of the plaintiff among the plaintiffs in the judgment subject to new trial is not a representative appointed by legitimate procedures is not applicable to the lawsuit filed by the defendant for new trial pursuant to Article 426

Articles 422(1)3, 426, and 427 of the Civil Procedure Act

St. Sweak Sweak's Sweak Sweak Sweak Sweaks and Pweaks

Successor of a kind of leaves: Yellow cryp

Jeonju District Court Decision 71 Gohap58 delivered on April 7, 1972

Gwangju High Court Decision 89Na1376 delivered on October 12, 1989

The judgment below is reversed, and the case is remanded to the Gwangju High Court.

We examine the grounds of appeal.

With respect to No. 1:

According to the reasoning of the judgment below, the court below determined that the lawsuit of this case, which was filed after the lapse of 30 days from February 18, 1981, was unlawful on the ground that Non-party Park Jong-dae, the representative of the plaintiff (the plaintiff, the plaintiff, and the plaintiff) among the plaintiff in the judgment subject to a retrial, was not the representative appointed by the legitimate procedure among the plaintiff, and there was an error in the law as alleged in the judgment subject to a retrial against the defendant (the plaintiff, the plaintiff, and the defendant) on the ground that there was a cause for a retrial as to the defect of power under Article 422 (1) 3 of the Civil Procedure Act (hereinafter referred to as the "Act").

However, according to Article 427 of the Act, the provision of Article 426 of the Act regarding the period of filing a retrial shall not apply to a lawsuit seeking a retrial on the ground of defects in the power of representation, and the above defects in the power of representation shall include defects in the representative of the corporation or organization. Thus, the court below's decision is justified within the scope of this, and there is an error of law by misapprehending the legal principles regarding the period of filing a retrial on the ground of defects in the power

With respect to the second ground:

According to the records, the defendant denies the power of representation of Park Jong-J's representative in this case (the re-appellant, May 15, 1989, September 20 of the same year, and the briefs). Thus, the court below should deliberate and decide on this part, and if Park Byung-J's representative is not recognized as the power of representation and there is no legitimate representative, the court below should appoint a special representative and proceed with the lawsuit, but the court below did not make any decision. The appeal pointing this out is justified.

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Young-ju (Presiding Justice)