Whether the plaintiff's withdrawal of a lawsuit by mistake against the intention of internal deliberation can be deemed null and void (negative)

Article 266 of the Civil Procedure Act

[Plaintiff, Appellant] Plaintiff 1 and 1 other (Law Firm Han, Attorneys Han-soo et al., Counsel for plaintiff-appellant)

District One Housing Reconstruction and Improvement Project Association (Law Firm Presiding Province et al., Counsel for the plaintiff-appellant)

Defendant Counterclaim Plaintiff and one other (Law Firm Seocheon et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2019Na8186, 8209, 2020Na10 decided February 11, 2020

The principal lawsuit and counterclaim of this case were all terminated on July 24, 2020 between the Plaintiff (Counterclaim Defendant) and the Defendant (Counterclaim Plaintiff) 1, and between the Plaintiff (Counterclaim Defendant) and the Defendant (Counterclaim Plaintiff) 2 on July 9, 2020.

1. Judgment on the main lawsuit

A. The withdrawal of a lawsuit by the plaintiff is the litigation against the plaintiff's court that extinguishs the continuation of the lawsuit by withdrawing the lawsuit filed by the plaintiff, and the litigation is bound to determine whether the lawsuit is effective on the basis of its indication rather than the intention of internal deliberation unlike the act in general private law. Thus, even if the plaintiff withdraws the lawsuit by mistake against the intention of internal deliberation, it shall not be deemed null and void (see Supreme Court Decision 95Da11740 delivered on October 24, 1997, etc.).

B. According to the records, on June 30, 2020, the Plaintiff (Counterclaim Defendant; hereinafter “Plaintiff”)’s legal representative submitted to this court a written withdrawal of the lawsuit that “I fully withdraw the lawsuit regarding the instant case,” and the Defendant (Counterclaim Plaintiff; hereinafter “Defendant”) 2 submitted written consent to the instant court on July 9, 2020, and Defendant 1 was served with a copy of the written withdrawal of the lawsuit on July 9, 2020 and did not raise an objection by July 23, 2020.

C. The Plaintiff, after the submission of the written withdrawal of a lawsuit, submitted the “written withdrawal of a lawsuit” and “written withdrawal of a lawsuit,” through his/her attorney on the same day, and thereafter, contests the effect of the withdrawal of the lawsuit to the effect that the Plaintiff’s association head and the attorney’s written opinion, etc. submitted the written withdrawal by misunderstanding the staff who received instructions to withdraw the lawsuit, but this was contrary to the Plaintiff’s intent to withdraw the lawsuit.”

In light of the legal principles as seen earlier, the withdrawal of a lawsuit is bound to be determined on the basis of its indication. Therefore, the validity of the withdrawal of the lawsuit submitted by the Plaintiff’s attorney cannot be deemed null and void solely on the ground that the Plaintiff and the Plaintiff’s attorney asserted. Therefore, the Plaintiff’s principal lawsuit of this case was completed as of July 24, 2020 where the period for objection against Defendant 1 was set against the Plaintiff’s attorney on June 30, 2020, and as to Defendant 2, the written consent was submitted to the Plaintiff’s attorney on July 9, 2020.

2. Judgment on the counterclaim

According to the records, each of the defendants' counterclaims in the lawsuit of this case is a preliminary counterclaim for which a trial is sought on the condition that the claim of this lawsuit will be accepted as a condition precedent. When the claim of this lawsuit is dismissed or withdrawn, the preliminary counterclaim is extinguished as stated in the main lawsuit. As long as the main lawsuit of this case has been withdrawn, the defendants' counterclaims are all terminated along with the main lawsuit.

3. Conclusion

Therefore, the principal lawsuit and counterclaim of this case shall be declared on July 24, 2020 between the Plaintiff and Defendant 1, and on July 9, 2020 between the Plaintiff and Defendant 2, the withdrawal of each lawsuit shall be completed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Ahn Jae-chul (Presiding Justice)