A. Whether there exists a ground for retrial in a case where the lower judgment, which was subject to review, asserts that there was a defect in power of representation

B. Requirements under which the other party may claim the lack of power as a ground for retrial

A. Even if the judgment of the court below on the judgment subject to a retrial has a defect in the power of representation against the non-party (A), who is the representative of the plaintiff among the plaintiff in the judgment subject to a retrial, the judgment cannot be used as a ground for retrial in the lawsuit of the retrial of this case, which is subject to a retrial without filing a lawsuit for retrial at the court of the judgment. Even if it appears to the purport that it constitutes a ground for a retrial of the judgment on the matter to be examined ex officio in the above judgment subject to a retrial, it cannot be viewed as a ground for a retrial in the judgment on the appeal in the above case or the previous litigation procedure, or there is no

B. The purport of the Civil Procedure Act as grounds for retrial is to protect the party whose power of representation is defective, and thus, it is limited to the case where the other party can benefit by asserting such grounds for retrial. Here, the case where benefits can be received refers to the case where the previous judgment could be changed ultimately to the benefit of the other party, even for reasons other than the defect of power of representation as above.

(a) Article 422 Subparag. 9, Article 424 of the Civil Procedure Act; Article 422 Subparag. 3

Supreme Court Decision 66Da2569 Decided February 28, 1967

The clans of the full-time members of the Simbling Sim Ham the Mambol Park;

Defendant

Supreme Court Decision 75Da746 Delivered on December 9, 1975

The retrial lawsuit is dismissed.

Litigation costs incurred in a retrial shall be borne by the defendant.

The summary of the grounds for the retrial of the defendant (the plaintiff for retrial, hereinafter the defendant) is that the non-party 1, who is not authorized to represent the plaintiff (the plaintiff for retrial, hereinafter the plaintiff) among the case of Gwangju High Court 75Da746 delivered on January 21, 1971, the resolution of appointment of the representative of the plaintiff clan of 75Da746 delivered on March 15, 1975, the resolution of appointment of the representative of the plaintiff's clan of 75Na73 delivered on March 21, 1971, and the resolution of appointment of the representative of non-party 2 sent on March 21, 1971 to the above non-party 2, who is not authorized to represent the plaintiff (the plaintiff for retrial, hereinafter the plaintiff), has legitimate power of representation, and in this case, the decision for retrial is not effective as the resolution of the defendant's representative of the above 23th or more of the above document, and it is not invalid to allow the preparation of the document.

However, even if there is a defect in the representative authority of the plaintiff clan in the above 75Na73 final judgment, the judgment cannot be used as a ground for retrial in the lawsuit of this case which is subject to review without filing a lawsuit for retrial at the court of final judgment. Even though the records of this case were determined to the effect that it constitutes the ground for retrial of the judgment of this case, it cannot be viewed as a ground for omission of judgment on the matters to be examined ex officio in the above final judgment. Thus, even if the records of this case were recorded in the final judgment of this case, it cannot be seen as a ground for omission. Furthermore, the non-party 2, the representative of the plaintiff clan, in the final judgment of this case subject to review of this case, was appointed as the legal representative of the above case, and the non-party 1, the previous representative of this case died on November 28, 1974, and the defendant did not have any ground for rejection of the plaintiff's right to represent in the final judgment of this case as well as the defendant's legitimate ground for rejection of the above decision of this case's submission.

In addition, the purport of the Civil Procedure Act which provides for the defect of authority of legal representation, etc. as grounds for retrial lies in the protection of the parties whose original authority is defective, so that the other party can benefit by asserting such ground for retrial (see Supreme Court Decision 66Da2569, Feb. 28, 1967). This refers to the case where the previous judgment can be changed ultimately to the interests of the plaintiff, even for reasons other than the above lack of authority of representation. Even if there is a lack of authority of the plaintiff clan as stated in the judgment subject to retrial, even if there is a lack of grounds for retrial, this case's judgment and its reasoning were examined by comparing the facts of the judgment subject to retrial and the records of the judgment below, and thus, the defendant cannot be viewed to have asserted that the above judgment of the plaintiff (the defendant's retrial) was legitimate, and thus, it cannot be viewed that the defendant paid the ownership of the land of this case to the non-party 3 and the non-party 4, whose name the final judgment was final and conclusive, and thus, it cannot be viewed that the plaintiff's ownership of this case's final and conclusive.

Therefore, the retrial of this case constitutes a case where there is no ground for retrial or there is no benefit to assert as a lawsuit for retrial, and thus, it is so decided as per Disposition by the assent of all participating judges by applying Articles 425 and 400 of the Civil Procedure Act.

Justices Kang Jong-young (Presiding Justice)