[1] In a case where multiple persons with a common interest have appointed the parties, whether the party who has been selected as the party to the appeal may also file an appeal (affirmative in principle)

[2] Whether the withdrawal of the party's selection can be implicitly seen (affirmative)

[3] Whether the appointed party is disqualified in a case where a lawsuit on the part of the appointed party is withdrawn or the judgment becomes final and conclusive (affirmative)

[1] Article 53 of the Civil Procedure Act / [2] Articles 53 and 63 of the Civil Procedure Act / [3] Article 53 of the Civil Procedure Act

[1] Supreme Court Decision 2003Da34038 Decided November 14, 2003 (Gong2003Ha, 2348) Supreme Court Decision 2008Du20901 Decided January 30, 2009 / [3] Supreme Court Decision 2006Da28775 Decided September 28, 2006 (Gong2006Ha, 1815)

Plaintiff

The media room Co., Ltd. and one other

Seoul Central District Court Decision 2014Na47787 decided April 22, 2015

The judgment of the court below is reversed, and the case is remanded to the Seoul Central District Court Panel Division.

The grounds of appeal are examined.

1. In a case where multiple persons with a common interest have appointed the parties, the appointed parties may conduct the lawsuit on behalf of the parties until the completion of the lawsuit in question, barring any special agreement, so the parties who have been appointed may also file an appeal (see Supreme Court Decisions 2003Da34038, Nov. 14, 2003; 2008Du20901, Jan. 30, 2009, etc.).

On the other hand, the selection of the parties may be cancelled or modified at any time for the future, and where the selection has been withdrawn, the parties may not claim the effect of withdrawal unless the appointed party or the party notifies the other party or the court of the withdrawal of the selection (Article 63(2) and (1) of the Civil Procedure Act). However, the withdrawal of the selection must not be explicitly explicitly but be implicitly possible.

In addition, the designated parties should be selected from among many persons who have a common interest. Thus, in cases where a lawsuit on the part of the designated parties is withdrawn or the judgment becomes final and conclusive, the designated parties lose their qualification as the designated parties as a matter of course (see Supreme Court Decision 2006Da28775, Sept. 28, 2006, etc.).

2. The reasoning of the lower judgment reveals the following facts.

A. The Plaintiff filed the instant lawsuit against the Defendants and the Nonparty seeking compensation for damages on the ground that the article or writing pertaining to the Plaintiff posted on the Internet media, etc. damaged the Plaintiff’s reputation.

B. The Defendants and the Nonparty, in response thereto, appointed the Nonparty as the designated party without any agreement on the limitation of the level of court. Of the Plaintiff’s claim, the first instance court rendered a judgment dismissing the remainder of the Defendants’ claims and the Nonparty’s identity.

C. The judgment of the first instance was served on and around August 26, 2014 on the Nonparty of the appointed party. The Defendants filed an appeal against the cited portion of the Plaintiff’s claim on or around September 2, 2014, which was within the filing period, under their own name. However, the Nonparty of the appointed party did not submit a petition of appeal.

3. We examine the above facts in light of the legal principles as seen earlier.

The Defendants, the designated parties, at any time, may withdraw the appointment of the Nonparty and directly appeal as the parties.

Since the part of the selected party’s claim against the Nonparty himself/herself was entirely dismissed by the first instance court, the Nonparty is not entitled to file an appeal against the aforementioned part.

Therefore, in this case where the Plaintiff did not appeal against the judgment of the first instance within the period of appeal, even if the Nonparty filed an appeal against the part of the judgment of the first instance, the judgment on the appointed party’s principal portion becomes final and conclusive by the lapse of the period of appeal, and thus, joint interests between the Nonparty and the Defendants are extinguished. Therefore, the Nonparty, as a matter of course, lost the qualification of the appointed party against the Defendants, and eventually, the Defendants’ own litigation was inevitable.

In full view of these circumstances, it is reasonable for the Defendants to decide whether to file an appeal with respect to the Defendants’ appeal against the judgment of the court of first instance, not by the designated parties whose interests conflict with each other due to the judgment of the court of first instance, and to conduct the litigation related thereto. Therefore, even if the Defendants or the Nonparty did not explicitly withdraw the selection, if the Defendants, who was the designated parties, filed an appeal in their own name against their lost part, there is sufficient room to interpret that the Defendants expressed their intent to explicitly withdraw the selection by submitting the petition of appeal. Therefore, the lower court should have determined whether the Defendants’ appeal is legitimate by stating what the Defendants’ genuine intent is by exercising their right to request the name.

Nevertheless, the court below held that the appeal filed by the Defendants on the ground that the Defendants did not submit a document to the effect that the designated Defendants withdrawn the selection in addition to the petition of appeal was unlawful since it was filed by a person without standing to be a party. The court below erred by misapprehending the legal principles as to the withdrawal of the designated act and the validity of the appeal filed by the designated parties

4. Therefore, 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 Kim Shin (Presiding Justice)