Whether a special representative under the Civil Procedure Act has the right to file an appeal or withdraw a lawsuit on behalf of a corporation (affirmative in principle)

In a case where there is no representative of a juristic person or an association which is not a juristic person, or where the representative is virtually or legally unable to exercise his/her power of representation, the special representative appointed pursuant to Article 62 of the former Civil Procedure Act (amended by Act No. 13952, Feb. 3, 2016; hereinafter “Act”) which applies mutatis mutandis pursuant to Article 64 of the former Civil Procedure Act (amended by Act No. 13952, Feb. 3, 2016; hereinafter “Act”) may conduct all procedural acts concerning the performance of litigation on behalf of a juristic person, in which the special representative has the same authority as the representative of an association which is not a juristic person or an association which is not a juristic person. Thus, under the Civil Procedure Act, the special representative has

Articles 52, 62, and 64 of the former Civil Procedure Act (Amended by Act No. 13952, Feb. 3, 2016);

Supreme Court Decision 2010Da5373 Decided June 10, 2010

Seoul High Court Decision 201Na1448 delivered on August 2, 2012

International Asset Trust Co., Ltd. (Law Firm LLC, Attorneys Kim Sun-tae et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2014Na204034, 2015Na202760 decided January 15, 2016

The instant lawsuit was concluded on February 5, 2016 by the special representative of the Plaintiff (Counterclaim Defendant). The litigation costs incurred after the completion of the lawsuit are borne by Nonparty 1 (date of birth omitted).

Judgment ex officio is made.

1. Where there is no representative of a juristic person or an association which is not a juristic person, or where the representative is practically or legally unable to exercise his/her power of representation, a special representative appointed pursuant to Article 62 of the former Civil Procedure Act (amended by Act No. 13952, Feb. 3, 2016; hereinafter “Act”) which applies mutatis mutandis pursuant to Article 64 of the same Act in cases where the progress of litigation is considerably obstructed by exercising the power of representation, the special representative appointed pursuant to Article 62 of the same Act (amended by Act No. 13952, Feb. 3, 2016; hereinafter “Act”), which is, a special representative pursuant to the Civil Procedure Act, has the same authority as the representative of a juristic person or an association which is not a juristic person, and thus, he/she is entitled to file an appeal or withdraw the litigation on behalf of the juristic person, barring any special circumstance (see Supreme Court Decision 20

2. On October 21, 2015, the lower court decided to appoint “non-party 2” as a special representative of the Plaintiff (Counterclaim Defendant; hereinafter “Plaintiff”) with respect to the instant lawsuit upon the Defendant’s application. On November 13, 2015, Nonparty 2 appeared at the fourth day of pleading in the lower judgment and stated that all the Plaintiff’s legal representatives have ratified the existing procedural acts. The lower court sentenced the lower judgment on January 15, 2016 after closing the pleadings on the same day, and the fact that Nonparty 2 submitted a written appeal to the lower court on January 29, 2016, but submitted it to the lower court on February 5, 2016 is clear in the record.

3. Examining these facts in light of the legal principles as seen earlier, even if the appeal filed by Nonparty 2, a special representative under the Plaintiff’s Civil Procedure Act, was in force, the instant lawsuit was terminated at the lower court’s trial as the withdrawal of the appeal by Nonparty 2 (it cannot be deemed that Nonparty 1 was a legitimate representative of the Plaintiff at the time of withdrawal of the said appeal, and since the instant lawsuit has already been completed lawfully, the appeal filed by Nonparty 1, who is alleged as the Plaintiff’s representative representative, is not separately determined).

4. Therefore, the instant lawsuit is concluded on February 5, 2016 by the Plaintiff’s special representative’s withdrawal of the appeal, and thus, the termination of the lawsuit is declared, and the litigation costs after the completion of the lawsuit are borne by Nonparty 1. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kwon Soon-il (Presiding Justice)