[1] In a lawsuit claiming a partition of co-litigants, whether there is any defect in the litigation requirements against one of the co-litigants (affirmative)

[2] In a case where a lawsuit is filed against a deceased person, whether the defect can be corrected by correcting the indication of the party in the final appeal (negative)

[1] Article 268 of the Civil Code, Article 67 of the Civil Procedure Act / [2] Article 260 of the Civil Procedure Act

[1] Supreme Court Decision 99Da31124 delivered on July 10, 2001

Plaintiff

Defendant

Chungcheong Development Co., Ltd. and seven others

Seoul High Court Decision 2010Na73330 decided October 28, 2010

The judgment of the court of first instance is reversed, and the lawsuit of this case is dismissed. All costs of the lawsuit are assessed against the plaintiff.

Judgment ex officio is made.

A lawsuit claiming partition of co-litigation is an essential co-litigation in which a co-owner who claims partition becomes the plaintiff and all other co-owners become a co-defendant (see Supreme Court Decision 9Da31124, Jul. 10, 2001, etc.). As such, a judgment on all co-owners should be unitedly finalized, and if there is any defect in the requirements for litigation in one of co-litigants, the previous lawsuit is unlawful.

In the civil procedure, the existence or capacity of the parties to the lawsuit falls under the requirements of lawsuit, and the filing of a lawsuit against the deceased person is illegal, and it is not possible to correct the defects by the method of correcting the indication of the parties, if it comes to the final appeal.

According to the records, on October 5, 2009, the plaintiff filed a complaint for partition of co-owned property in this case with the non-party 1 and the non-party 9 as the defendant, and the non-party 1 had already died on December 11, 2001, which was the previous one, and the defendant asserted the death of the deceased for the first time in this court, and the plaintiff filed a petition for correction of a party indication with the court to correct the deceased's indication as the heir. In light of the above legal principles, in light of the above legal principles, the lawsuit in this case is unlawful in relation to all co-litigants and its defect cannot be corrected, and thus, the judgment of the court below cannot be maintained as it is.

Therefore, without further proceeding to decide on the grounds of appeal, the judgment of the court below is reversed. Since this case is sufficient for the court to directly render a judgment, the judgment of the court of first instance which accepted the Plaintiff’s claim is revoked and dismissed. The total costs of the lawsuit are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Nung-hwan (Presiding Justice)