The judgment below

The part of the deceased C's request for taking over the proceedings is reversed, and the deceased C's request for taking over the proceedings is accepted.

1. As to the Plaintiff’s appeal

A. As the basic principles of the Civil Procedure Act requiring the rescue of the plaintiff and the defendant to be the defendant are inappropriate, and the substantial litigation relationship cannot be achieved, the judgment of the court of first instance was rendered in such a situation.

Even if the judgment is void automatically, and the appeal or the request for taking over of lawsuit by the heir of the defendant who is the deceased of the judgment is unlawful.

(See Supreme Court Decisions 69Da929 delivered on March 24, 1970, 69Da1741 delivered on February 9, 1971, and Supreme Court Decision 2003Da37006 delivered on September 26, 2003, etc. Such a legal doctrine likewise applies to cases where the defendant died before the delivery of a duplicate of the complaint after filing a lawsuit.

B. Review of the reasoning of the lower judgment and the record reveals the following facts.

(1) On January 19, 2012, the Plaintiff filed the instant lawsuit with Defendant B and C as a co-defendant. The first instance court served a duplicate of the complaint with the address indicated in C, but did not serve on February 3, 2012 on the ground that the address was unknown.

(2) Accordingly, the Plaintiff revised C’s address on February 24, 2012, and the first instance court served a duplicate of the complaint to the corrected address, but did not serve on the ground that the petition was not closed.

(3) Thereafter, the first instance court rendered a judgment in favor of the Plaintiff on August 10, 2012 at the end of the pleadings by serving a duplicate of the instant complaint against C, the date of pleading, etc. by public notice, and rendered a judgment in favor of the Plaintiff. The original copy of the first instance judgment was also served to C by public notice.

(4) On the other hand, C died on February 9, 2012, and as Defendant B, his spouse, gave up inheritance, D, E, and F, who were the children of C, became co-inheritors.

(5) On October 31, 2012, D, E, and F filed an appeal subsequent to the first instance judgment. On January 15, 2013, D, E, and F filed an application to resume a lawsuit with the lower court.

(6) On August 29, 2013, the Plaintiff indicated the Defendant’s indication to the lower court from C to D, E, and F.