Whether an independent party is entitled to obtain confirmation of ownership due to the inheritance in a lawsuit against the inherited property of which the existence of the inheritor is unknown;

In a lawsuit concerning inherited property, the existence of an inheritor is unclear, the legitimate defendant is appointed by the court, and if the inheritor of the property, he exercises the right to conduct a lawsuit for the intervenor's assertion as the legal representative of the inheritor of the property. Therefore, the intervenor seeking confirmation of ownership due to the inheritance of the property cannot be deemed to be in the position of a third party, and the plaintiff also filed a lawsuit on the premise that the heir's inherited property is the deceased's inherited property, so it is not incompatible with the intervenor's claim. However, the intervenor's claim is not sufficient to confirm the existence of the plaintiff's claim because it is merely denying the plaintiff's claim, and therefore the independent

Plaintiff

The deceased Defendant

An independent party intervenor (Attorney Kim Jong-ho, Counsel for defendant-appellant)

Cheongju District Court Decision 75Na31 delivered on March 2, 1976

The appeal shall be dismissed. The costs of appeal shall be borne by the intervenor.

The grounds of appeal are examined.

1. In a lawsuit concerning inherited property, in which the existence of an heir of the property is unclear, the legitimate defendant is an administrator of inherited property appointed by the court. Therefore, in the lawsuit concerning the deceased defendant's inherited property in this case, the judgment of the court below is justified that the non-party, who is an administrator of inherited property, is qualified as the defendant and the inherited property is not deemed the defendant, and if the heir of inherited property succeeds to the property, the administrator of inherited property shall be the legal representative

Therefore, the intervenor seeking confirmation of ownership due to the inheritance of the property of this case is not in the position of so-called third party, and the plaintiff also filed a lawsuit on the premise that it is the deceased defendant's inherited property. Thus, it is not compatible with the intervenor's claim seeking confirmation of ownership due to inheritance. However, the intervenor's claim is merely denying the plaintiff's claim, and it does not require confirmation of ownership. Thus, the judgment of the court below holding that the intervenor's claim of this case is illegal because it does not require confirmation of ownership due to the plaintiff's claim, and there

2. In the case of a judgment dismissing a participant in the case of a participant, the plaintiff and the defendant have to move to the trial on the merits of the case between the plaintiff and the defendant until the date on which the party's return to the lawsuit was made cannot be considered as an independent opinion. Since the intervenor's independent party's lawsuit did not be considered as an assisting party's lawsuit, the argument on this point is without merit.

Therefore, the appeal shall be dismissed and the costs of the lawsuit shall be borne by the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kang Jeong-hee (Presiding Justice)