Where adult guardianship commenced after filing a lawsuit and adult guardianship loses litigation capacity, whether a party to the lawsuit is still under adult guardianship (affirmative), and whether an adult guardian takes over the litigation procedure as a legal representative of an adult ward (affirmative)

Articles 938(1) and 949(1) of the Civil Act; Articles 55(1) and 235 of the Civil Procedure Act

○○ (Supplementary Guardian of Legal Representative) (Attorney clinical LLC, Counsel for the defendant-appellant)

Defendant 1 and seven others (Attorney Seo-sik et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2015Na2063723 decided January 26, 2017

The judgment below is reversed and the case is remanded to Seoul High Court.

ex officio deemed.

1. Upon the commencement of adult guardianship, a guardian shall become the legal representative of the ward (Article 938(1) of the Civil Act); and a person under adult guardianship shall act on behalf of the ward for a juristic act concerning his/her property (Article 949(1) of the Civil Act); and a person under adult guardianship may act only by his/her legal representative (Article 55(1) main text of the Civil Procedure Act). Meanwhile, in cases where adult guardianship commenced after the institution of lawsuit and the person under adult guardianship loses his/her litigation capacity, the litigation procedures shall be suspended; however, an adult guardian shall take over the litigation procedures as his/her legal representative (Article 235 of the Civil Procedure Act). In such cases, a party is still under adult guardianship, and an adult guardian’s legal representative

2. According to the records, ○○○ filed the instant lawsuit through his/her legal representative. On May 19, 2015, where the instant lawsuit is pending, ○○○ issued a trial for commencing adult guardianship with the purport of “the commencement of adult guardianship for ○○○, the appointment of an adult guardian, and the appointment of an adult guardian as an attorney-at-law, and there is no restriction on the scope of the adult guardian’s right of legal representation,” ○○ filed with the first instance court an application for confirmation of facts and a correction of the indication of the party, and thereafter filed a written application for approving the filing of the instant lawsuit.

Examining these facts in light of the above legal principles, the Plaintiff’s party is still ○○○○ in the instant litigation proceedings, and ○○○’s adult guardian is merely involved in the instant litigation proceedings by taking over “legal representative” and does not have standing to sue.

Nevertheless, the lower court determined the Plaintiff as “△△△△△△” on the premise that an adult guardian becomes qualified to sue by commencement of adult guardianship for ○○○○○○ upon commencement of adult guardianship. In so determining, the lower court erred by misapprehending the legal doctrine on the capacity to stand under adult guardianship, the qualifications for being a party, and the legal status of an adult guardian as a legal representative.

3. Therefore, without further proceeding to decide on the grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kwon Soon-il (Presiding Justice)