The validity (effective) of withdrawal of a lawsuit due to the mistake of an indication agency and whether such withdrawal is voluntarily withdrawn (negative)

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 procedure is bound to determine its validity on the basis of its expression rather than that of the plaintiff's intention in general private law. Thus, the office clerk who received an order from the plaintiffs' attorney to withdraw the lawsuit against one of the plaintiffs falls under the plaintiffs' attorney's attorney's representation agency and his mistake is deemed to be an error of the plaintiffs' attorney's attorney. Thus, it cannot be deemed to be null and void even if he withdraws the lawsuit by all of the plaintiffs against the plaintiffs' attorney's intention due to the error of the office clerk's attorney. Thus, as long as the written withdrawal of a lawsuit is submitted, the plaintiff cannot arbitrarily withdraw it

Article 239 of the Civil Procedure Act, Article 109(1) of the Civil Act

Supreme Court Decision 64Da92 Decided September 15, 1964 (No. 12-2, 98), Supreme Court Decision 76Da1829 Decided December 11, 1979 (Gong1980, 12413), Supreme Court Decision 80Da3251 Decided April 12, 1983 (Gong1983, 808)

Plaintiff 1 and 7 others (Law Firm continental, Attorneys Han-ro et al., Counsel for the plaintiff-appellant)

5, 6, and 7 copies of Cho Jong-dong reconstruction association;

Seoul High Court Decision 96Na17969 delivered on December 17, 1996

All appeals are dismissed. The costs of appeal are assessed against the plaintiffs.

We examine the grounds of appeal.

The withdrawal of a lawsuit by the plaintiff is the litigation to the plaintiff's court that extinguishs the continuation of the lawsuit by withdrawing the lawsuit filed by the plaintiff, and the litigation act is bound to determine its validity on the basis of its expression rather than that of the plaintiff's intention. Thus, even according to the plaintiffs' assertion itself, the non-party 2, who was ordered by the plaintiffs' attorney to withdraw the lawsuit against the non-party 1, constitutes the plaintiffs' attorney's legal representative's mistake and his mistake should be viewed as the plaintiff's legal representative's mistake. Thus, even if the above non-party 2 withdraws the lawsuit against the plaintiffs' legal representative's intention due to mistake, it cannot be viewed as null and void (see Supreme Court Decision 80Da3251 delivered on April 12, 1983), so long as the written withdrawal of the lawsuit was submitted, the plaintiff cannot withdraw it at will without asking the other party's legal representative's prior to and after the delivery of the document.

In the same purport, since the withdrawal of the lawsuit in this case by the plaintiffs' attorney is lawful, the court below is just, and there is no error of law such as misunderstanding of legal principles or incomplete hearing as to the theory of lawsuit. The argument is without merit.

Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Yong-hun (Presiding Justice)