(영문) 의정부지방법원 2019.10.22 2018나205835

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(영문) 의정부지방법원 2019.10.22 2018나205835

원상회복 청구

Text

1. All appeals filed by the Defendant (Counterclaim Plaintiff) against the instant principal lawsuit and counterclaim are dismissed.

2. The costs of appeal shall be the principal lawsuit.

Reasons

1. The reasoning for the court’s explanation of this case is as follows, except where the defendant added the following judgments as to the matters alleged in the trial, and thus, the court cites it as it is in accordance with the main sentence of Article 420 of the Civil Procedure Act.

2. Additional determination

A. After the Defendant filed the instant appeal, the Defendant directly contacted with the Plaintiff’s representative director AF. The Plaintiff’s representative director was unaware of the progress of the instant lawsuit, and he was identical to C’s filing of the lawsuit in the name of the Plaintiff, and the Plaintiff said that C did not have any intent to proceed with the instant lawsuit. In light of this, it appears that the Plaintiff did not directly delegate the instant lawsuit.

Therefore, the plaintiff's lawsuit of this case is unlawful as it is by an agent without legitimate power of attorney.

B. (1) The existence of the attorney's power of attorney shall be determined by the court's discretion in a case where the power of attorney is a private document as a requisite for a lawsuit and the court orders certification of the attorney's power of attorney. However, in a case where the other party contests it and there is no obvious evidence to prove that the power of attorney is authentic on the records, the court shall investigate whether the defects of the power of attorney exist, such as ordering certification of the power of attorney or examining whether the other party actually delegates the power of attorney or otherwise. In a case where the person who files a lawsuit as the attorney fails to prove the power of attorney despite an order of certification of the court, the court may dismiss the lawsuit on the ground that it is illegal to have been instituted by a person without the right of attorney. In this case, the litigation costs shall be borne by the

(see, e.g., Supreme Court Order 97Ma1574, Sept. 2, 1997). (2) As to the instant case, “A” was examined.

참조조문

-민사소송법 제420조

참조판례

-대법원 1997. 9. 22. 자 97마1574 결정

유사 판례

-대구지방법원 2014.05.15 2013가합7671

-서울고등법원 2016.09.22 2015나2050819

-대법원 1997. 9. 22. 자 97마1574 결정

-대법원 1997. 9. 22.자 97마1574 결정

-대구지방법원 2014.05.15 2013가합7664