Plaintiff (Quasi-Review Defendant) 1 and five others (Attorney Seo-tae, Counsel for the plaintiff-appellant)

Jinju P&P (Law Firm Gyeongyang, Attorney Yellow-young, Counsel for the plaintiff-appellant)

December 5, 2013

Suwon District Court Sejong District Court Decision 201 Gohap1479 dated January 18, 2012

Suwon District Court Decision 2012 Gohap13 Decided March 28, 2013

1. Revocation of a judgment of the first instance;

2. The quasi-examination of this case shall be dismissed.

3. All costs of the quasi-examination suit shall be borne by the defendant (quasi-examination plaintiff).

1. Purport of claim

In the first place, the defendant (hereinafter "the defendant") shall perform the procedure for registration of cancellation of ownership transfer as of each share of 160 percent to the plaintiff (the quasi-Appellant defendant; hereinafter "the plaintiff") 1, 684/2,142, the plaintiff (the quasi-Appellant defendant; hereinafter "the plaintiff") 240/249, the plaintiff (the quasi-Appellant defendant); 240/249, the plaintiff (the quasi-Appellant defendant); 160/249, the plaintiff (the quasi-Appellant defendant); 120/2,142, the plaintiff (the quasi-Appellant defendant); 6, 7, and 8 of the plaintiff (the quasi-Appellant defendant); and 160/142 of the shares in each of the real estate listed in the separate sheet, which had been completed on November 29, 1946.

Preliminaryly, the Defendant, among the real estate listed in the separate sheet, shall implement the registration procedure for transfer of ownership for the recovery of authentic names with respect to each share of 9,864/29, 29,484, and 2,352/29, 29,484 to the Plaintiff (Quasi-Review Defendant) 2, the Plaintiff (Quasi-Review Defendant) 6, the Plaintiff (Quasi-Review Defendant) 7, and the Plaintiff (Quasi-Review Defendant) 8, respectively, to the Plaintiff (Quasi-Review Defendant) 2,352/29,484, the Plaintiff (Quasi-Review Defendant) 3, and the Plaintiff (Quasi-Review Defendant) 4, respectively, to the Plaintiff 1,568, and the Plaintiff (Quasi-Review Defendant) 5/29,484, with respect to each share of the real estate listed in the separate sheet (the Plaintiff reduces the purport of the claim at the trial, and added the conjunctive claim).

2. Purport of quasi-examination

The protocol subject to quasi-examination shall be revoked. All of the plaintiffs' claims are dismissed.

3. Purport of appeal

The judgment of the first instance is revoked. In the first instance, the defendant's quasi-appeal is dismissed. In the first instance, the judgment is the same as the claim.

1. Formation of the protocol subject to quasi-examination, and filing of the lawsuit and taking over the lawsuit in this case;

On January 18, 2012, at the date of pleading of the Plaintiff (Quasi-Review), 1, 5 (Quasi-Review), 6, 7, 8 (Quasi-Review), and 2, 3, and 4 (Quasi-Review), the deceased non-party 5, who is the inheritee of the Plaintiff (Quasi-Review), filed against the Defendant on April 13, 201, Suwon District Court Decision 201Gahap1479 (hereinafter “Quasi-Review”) filed for the performance of the registration of cancellation of ownership transfer registration (hereinafter “the case subject to quasi-Review”) against the Defendant. On January 18, 2012, it is evident that the Defendant filed a suit against the Plaintiff (Quasi-Review), 1, 5 (Quasi-Review), 6, 8, and 5 (Quasi-Review), and 5 (Non-Party 1, 65, and 6 (Non-Party 2, 75, and 7) of the Plaintiff (Quasi-Appellant)’s death).

2. Determination as to the legitimacy of the lawsuit for quasi-deliberation of this case

A. The defendant's assertion on the quasi-examination grounds

In order for a clan representative to become a petitioner in a lawsuit, the non-party 1, who was the representative of the defendant, was present at the date for pleading of the quasi-trial case without obtaining special authorization from the defendant, and recognized the claim. This constitutes a cause for quasi-adjudication under Article 451 (1) 3 of the Civil Procedure Act, and thus, the quasi-adjudication protocol subject to quasi-adjudication should be revoked.

B. Determination as to whether the filing period is complied with

Pursuant to Articles 64, 52, and 56(2) of the Civil Procedure Act, and Article 276(1) of the Civil Act, if the representative of a non-corporate group, such as the defendant, intends to conduct litigation concerning the disposal of collective ownership, ex officio prior to the existence of a ground for quasi-adjudication as alleged by the defendant, he/she shall obtain special authorization by a resolution of a general meeting, barring any special circumstances. Thus, if the non-corporate group, without such special authorization, failed to file a petition in a quasi-corporate group subject to quasi-adjudication without obtaining such special authorization, it constitutes a defect in granting the authority necessary for conducting the litigation, and thus, there exists a ground for quasi-adjudication as stipulated in Articles 461 and 451(1)3 of the Civil Procedure Act. However, in the above case, even if there is a defect in the power of attorney who did not have the right of representation at all, it shall be filed within 30 days after becoming aware of the ground for quasi-adjudication pursuant to Article 456 of the same Act (see Supreme Court Decision 198Da584, May 198, 198, 198).

The defendant becomes aware that there was a defect in the special authority necessary for conducting the above litigation at the time of the non-party 1's death in the case subject to quasi-deliberation (see, e.g., Supreme Court Decisions 75Da120, May 27, 1975; 98Da46600, Oct. 22, 199; 2010Da80718, Feb. 10, 201). The lawsuit for quasi-deliberation of this case was filed on July 11, 2012, 30 days after the lapse of 30 days from the lawsuit, and thus, the lawsuit for quasi-deliberation of this case was filed with the lapse of the period for filing the lawsuit (the defendant's non-party 1's non-party 1's non-party 1's non-party 1's non-party 1's non-party 1's non-party 1's non-party 1's non-party 1's non-party 1's non-party 1's appeal.

3. Conclusion

Therefore, the lawsuit for quasi-examination of this case shall be dismissed in an unlawful manner, and the judgment of the court of first instance shall be dismissed in a different conclusion, so the judgment of the court of first instance shall be revoked and the lawsuit for quasi-examination of this case shall be dismissed as per Disposition.

[Attachment]

Judges Lee Young-young (Presiding Judge) Kim Jong-young