The meaning of “when there is a defect in the power of attorney or the power of attorney necessary for conducting litigation” under Article 422(1)3 of the Civil Procedure Act, which is a cause for a retrial under Article 422(1)3 of the Civil Procedure Act, and whether it constitutes a cause for retrial in a case where a judgment became final and conclusive after being served on an unauthorized representative and the litigation documents were served,

In order to claim a defect in the power of attorney under Article 422(1)3 of the Civil Procedure Act or the power of attorney necessary for the conduct of procedural acts as grounds for retrial, it shall not be deemed that the unauthorized representative has actually conducted the substantive procedural acts on behalf of the principal as the attorney, or the principal or his/her attorney was unable to conduct the substantive procedural acts due to the defect of power of attorney. Thus, even if the litigation documents, etc. to be served on the principal are not served on the principal or his/her attorney, and the judgment became final and conclusive without being served on the non-authorized representative, if the principal or his/her attorney was not deprived of the opportunity to conduct the substantive procedural acts, such as submitting the means of offence or defense corresponding thereto, the reason cannot be asserted

Article 422(1)3 of the Civil Procedure Act

Supreme Court Decision 66Da308 Delivered on April 19, 1966

[Judgment of the court below]

Defendant 1 and one other, Counsel for the defendant Kim Jong-chul et al., Counsel for the defendant-appellant

Supreme Court Decision 91Da46243 delivered on June 23, 1992

The request for retrial is dismissed.

The litigation costs for retrial shall be borne by the plaintiff.

1. The grounds for retrial asserted by the plaintiff (the plaintiff, the plaintiff, and the plaintiff later) in the lawsuit for retrial of this case are as follows.

In other words, a party member served both a duplicate of the written reply submitted by three attorneys of the defendant (the defendant, the defendant, the secondly, the defendant) and a writ of summons for sentencing to be served on the plaintiff (the trade name before being changed shall be called "the person to be served as the plaintiff's representative" and the plaintiff's representative shall not be served on the plaintiff or the plaintiff's attorney, and the decision to dismiss the plaintiff's appeal was rendered. In the judgment for retrial, there is a ground for retrial under Article 422 (1) 3 of the Civil Procedure Act, which corresponds to "when there is lack of the right to attorney or the representative to receive the right necessary for conducting the litigation".

2. If a judgment became final and conclusive without being served on the principal or his/her legal representative and without being served on him/her, if a legal representative or his/her legal representative did not deprive him/her of the opportunity to actually act in response to an offence or defense, the ground for retrial should not be asserted as a ground for retrial, since it is reasonable to deem that the unauthorized representative was a litigation representative on his/her behalf, or that the principal or his/her legal representative could not actually act due to a defect in the power of attorney (see, e.g., Supreme Court Decision 66Da308, Apr. 19, 1966).

However, the issue of whether a duplicate or certified copy of the appellate brief is to submit a written answer is left at the discretion of the Appellee, and even if Appellee submits a written answer and the duplicate or certified copy is served on the appellant, it shall not be subject to substantive procedural actions, such as claiming a new ground for appeal by the appellant (in light of the record, it is evident that the attorney of the defendant has submitted a written answer after the period for the plaintiff to submit the written answer) and at the same time the judgment becomes final and conclusive at the same time as the appellate court declares a judgment dismissing the final appeal. As such, even if the appellant has declared a judgment dismissing the final appeal without delivering a duplicate or certified copy of the written answer submitted by the Appellate-Appellee and a writ of summons to the appellant (the notice to the attorney of Appellee) on the same ground, it cannot be asserted that there is a ground for retrial under Article 422 (1) 3 of the Civil Procedure Act “when there is any lack of authority of legal representation, power of attorney or authority necessary for litigation by a representative.”

3. Therefore, since it is obvious that the plaintiff's request for retrial of this case is without merit, it is dismissed, and the costs of retrial are assessed against the plaintiff who has lost, so it is so decided as per Disposition.