Requirements to consider the absence of the other party’s right of legal representation as grounds for retrial.

Article 422(1)3 of the Civil Procedure Act provides for a ground for retrial for a defect of a legal representation right as a ground for retrial. The purport of Article 422(1)3 of the Civil Procedure Act is to protect the party who originally lacks such legal representation right, and thus, it is limited to cases where the other party can receive benefits by asserting such ground in order to be considered as a ground for retrial. Here, the case where benefits can be received refers to cases where the judgment may be finally changed to the

Article 422(1)3 of the Civil Procedure Act

Of the type of sweak-sweak Sweak Sweak Sweak Sweak Sweak Sweaks

Yellow Fulcel

Jeonju District Court (73Gahap175)

Gwangju High Court (75Na73)

The retrial lawsuit is dismissed.

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

(main purport of claim)

The defendant (hereinafter referred to as the "defendant") will implement the procedure for cancellation registration of ownership transfer registration No. 11148 on May 16, 1972, which was received on May 16, 1972 by the Jeonju District Court No. 11148 on the title transfer registration of the plaintiff (hereinafter referred to as the "the plaintiff") in Jeonju-dong, Pung-dong 1 to the plaintiff (the plaintiff, hereinafter referred to as the "appellant").

Litigation costs shall be borne by the defendant.

(Preliminary Claim)

The defendant shall implement the procedure for the cancellation registration of ownership transfer on the above forest land to the non-party 1 and 2.

Litigation costs shall be borne by the defendant.

The judgment subject to review and the judgment of the first instance is revoked.

The plaintiff's lawsuit is dismissed.

Litigation costs shall be borne by the plaintiff.

The summary of the defendant's grounds for retrial is that, in the case of this court 75Na73 and the previous trial, Nonparty 3 submitted a resolution of appointment of the representative on January 21, 1971, which is a judgment subject to retrial, and conducted litigation as the representative of the plaintiff clan. In the case of the above judgment subject to retrial, Nonparty 4 submitted a resolution of appointment of the representative on March 15, 1975 and made the decision final and conclusive by conducting the litigation as the representative of the plaintiff clan. However, each of the above decisions of appointment of the representative was made by submitting a resolution of appointment of the representative on March 15, 1975, but it was merely made by a false or unlawful resolution of appointment of the plaintiff clan, and there was no representative authority of the plaintiff clan 3 and 4, which constitutes grounds for retrial under Article 422

Therefore, the purport of the Civil Procedure Act, which provides for a cause for retrial, such as a defect of authority of legal representation, is to protect the parties who have a defect in such power of representation, and it is only possible for the other party to benefit by asserting such cause. Here, if benefit can be received, it refers to the case where the judgment can be finally changed to the interest of the plaintiff in the retrial even for reasons other than the defect of power of representation as above. Thus, even if there is a cause for retrial, such as the head of the defendant, in the judgment subject to retrial, there is no objection as to the above reasons that the defendant could change the above final judgment to benefit as above, and in light of the records, there is no objection as to the above reasons that the above final judgment could be changed to the interest of the plaintiff in the judgment subject to retrial, as well as the registration of ownership transfer of the land in this case against the non-party 5 and the registration of establishment invalidation of the right of establishment of a mortgage, and the defendant's assertion that the plaintiff's claim for res judicata of the above final judgment would not have been valid after the final judgment.

Therefore, since the retrial of this case constitutes a case where there is no benefit to assert as a lawsuit for retrial, the retrial of this case is dismissed, and the costs of the retrial are assessed against the losing defendant. It is so decided as per Disposition.

Judges Go High-gu (Presiding Judge)