Presumption of Withdrawal of Action

The validity of the withdrawal or withdrawal of a lawsuit under Article 241 of the Civil Procedure Act is naturally effective, and it is not decided by the court or the proceedings or actions of the parties.

Article 241 of the Civil Procedure Act

Supreme Court Decision 68Da1756 delivered on March 4, 1969 (Supreme Court Decision 189Da1756 delivered on June 18, 196, Supreme Court Decision 17Da268 delivered on June 17, 200, Supreme Court Decision 241Da132 delivered on January 20, 1953 (Supreme Court Decision 4717 delivered on April 4, 196, Article 241(1)945 of the Civil Procedure Act)

Plaintiff

Defendant 1 and three others

Daejeon District Court (65Hun-Ba2, 66-2, Counsel for the defendant-appellant)

This lawsuit was concluded on September 25, 1968 due to the absence of both parties.

Costs of lawsuit after the request for designation of date shall be borne by the Defendants.

The defendants' attorney shall revoke the legal protocol established as of March 31, 1965 with respect to the claim for payment between the defendants and 16 others and the plaintiff, and Daejeon District Court 1965A57.

The plaintiff's claim is dismissed.

The defendants' legal representative revoked the original judgment and sought the same judgment as the purport of the request for retrial, and requested the designation of the date after this lawsuit was processed by the absence of both parties on September 25, 1968.

According to the records, the plaintiff, the defendants, and their legal representatives were not present even after receiving a legitimate date notice on the date of the 9th trial ( April 24, 1968) and the date of the 15th trial ( September 25, 1968). Thus, the defendants' legal representatives are asserted as follows as the reasons for seeking the designation of the date of the pleading.

In other words, first, in the case of this case where the 15th day for pleading of the trial is the date of examination of evidence and there is no trace of revoking the evidence to be examined on this date, the court is obligated to conduct the examination of evidence regardless of the attendance of both parties. Thus, the party member's wife who was absent from both parties is unlawful. However, when the court did not conduct the examination of evidence, the court cannot enter into the examination of evidence (see Supreme Court Decision 66Da2370, Nov. 14, 1967). Thus, the above argument is groundless (see Supreme Court Decision 6

Second, after the non-appearance of both parties, the party member expressed his intention to withdraw the disposition of the non-appearance of both parties when the other party's legal representative obtains only the understanding of the other party's legal representative, and the case (67Na1008) in which both parties' mutual understanding has withdrawn the handling of the non-appearance of the two parties. Thus, it is clear that the party member has no intention to do so on the 15th date for pleading, and thus, it cannot be regarded as the withdrawal of the appeal. However, as long as both parties did not appear on the date for pleading twice even after the party's legal date for pleading was notified, the appeal cannot be deemed to have been withdrawn. This case's appeal cannot be deemed to have been withdrawn, and it is difficult for the court to have decided on the date for pleading (the defendant's legal representative's oral objection is not correct, but if the party refers to the intention to commence the date for pleading, it shall not be accepted as the date for withdrawal of the two parties' legal representative's objection to the above case.

Third, since the date for the 15th pleading of party members was actually commenced at around 14:10 on September 25, 1968 and closed at around 14:30 on September 25, 1968, the legal representative of the Defendants, who was a legal representative of a case being tried at another trial at the different trial division on the same date, did not have enough time to attend the trial or demand postponement. Thus, the absence of the legal representative of the Defendants, as alleged above, shall be deemed to be due to a cause not attributable to the party member. However, the Defendants’ legal representative cannot be deemed to have failed to attend the trial on the grounds not attributable to him/her. Thus, the above assertion is wrong.

Ultimately, the defendants' attorney's grounds for filing an application for designating the date are without merit, and it is clear that this lawsuit was concluded by the absence of both parties as the withdrawal of appeal on September 25, 1968. Thus, the costs of lawsuit after the request for designating the date are assessed against the applicant party. It is so decided as per Disposition.

Judges Jeong-won (Presiding Judge)