Plaintiff (Law Firm Pyeongtaek, Attorneys Signals-yang et al., Counsel for plaintiff-appellant)

Sungdong Construction Co., Ltd. (Attorneys Lee Jong-sung et al., Counsel for the defendant-appellant)

August 17, 2006

Suwon District Court Decision 2004Ra11242 Delivered on November 15, 2005

1. The appeal of this case shall be dismissed.

2. The costs of appeal shall be borne by the Plaintiff.

The judgment of the court of first instance is revoked. The defendant shall revoke the judgment of the court of first instance with respect to the real estate listed in paragraph (1) of the attached Table to the plaintiff. The defendant shall cancel the registration of transfer of ownership completed on April 17, 1995 by the Suwon District Court Registry No. 10198 of the attached list, the registration of transfer of ownership completed on October 5, 1995 by the receipt No. 25731 of the same registry office, the registration of transfer of ownership completed on October 5, 1995 by the receipt No. 25731 of the same registry office with respect to the real estate listed in paragraph (3) of the same list, the registration of transfer of ownership completed on April 17, 1995 by the receipt No. 10197 of the same registry office with respect to the real estate listed in paragraph (4) of the same list, and the registration of cancellation of transfer of ownership completed on October 5, 1995.

1. Determination on this safety defense

A. The following facts are significant in this Court:

(1) On August 19, 2004, the Plaintiff filed the instant lawsuit against the Defendant with respect to each real estate listed in the separate sheet, seeking implementation of the procedure for registration of cancellation of ownership transfer registered in the name of the Defendant. The Nonparty’s letter of delegation of the lawsuit submitted by the Nonparty to the court of first instance did not contain any special authorization as to the filing of the lawsuit.

(2) However, on November 15, 2005, the court of first instance rendered a judgment against the plaintiff against which the plaintiff rejected the plaintiff's claim against the defendant on November 17, 2005, and served a judgment of first instance on the non-party to the attorney-at-law who was the plaintiff's attorney at the first instance court. The non-party to the attorney-at-law submitted a petition of appeal to the court of first instance on

(3) Since then, the Plaintiff failed to submit a document attesting that the Plaintiff granted the Nonparty the authority to file an appeal to the Nonparty within two weeks from the date the judgment of the first instance court was served.

B. Determination

Article 90(2) of the Civil Procedure Act stipulating the scope of the power of attorney requires special authorization for filing an appeal. Since it is evident that the Plaintiff did not delegate the right to file an appeal to the said attorney, the instant appeal filed by the said attorney in the absence of special authorization for filing an appeal to the said attorney is an illegal appeal filed by the said attorney in the absence of the said right of attorney. Considering that the period of filing an appeal is a peremptory term, the remedy of the defect cannot be recognized unless the Plaintiff revises the defect of the said power of attorney at least within the period of filing an appeal. Accordingly, the instant appeal is unlawful.

2. Conclusion

Therefore, the appeal of this case is unlawful and dismissed, and it is so decided as per Disposition.

[Attachment List of Real Estate]

Judges Lee Jae-chul (Presiding Judge) (Presiding Justice)