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1. The part against the defendant among the judgment of the court of first instance is revoked, and the lawsuit of plaintiff FL among the revoked part is dismissed, and the remaining part is dismissed.
Reasons
1. The underlying facts and the allegations by the parties are identical to the part pertaining to the judgment of the court of first instance (30-33 pages) against the plaintiffs, and thus, they shall be quoted in accordance with the main sentence of Article 420 of the Civil Procedure Act.
2. Determination
A. 1) We examine, ex officio, whether the lawsuit filed by Plaintiff FL was lawful or not. 2) If the Plaintiff died before the complaint was received in the court of first instance, the lawsuit filed in the name of the Plaintiff is unlawful and thus dismissed.
(3) According to the fact-finding inquiry with respect to the head of Pyeongtaek-si in the lower court’s judgment (see, e.g., Supreme Court Decisions 90Meu21695, Oct. 26, 1990; 2014Da210449, Apr. 29, 2016). According to the fact-finding inquiry with respect to the head of Pyeongtaek-si in the lower court, Plaintiff FL can be recognized as deceased on February 6, 2012. Meanwhile, it is apparent in the record that Plaintiff FL brought the instant lawsuit on April 25, 2012, accompanied by the power of attorney that Plaintiff FL was delegated by the Plaintiffs, including Plaintiff FL, around April 26, 2012, the instant lawsuit filed by Plaintiff FL constitutes a lawsuit filed by a person who had no capacity to be a party, and thus, it cannot be denied as it constitutes a case where the defect is inappropriate and corrected.
【Lawsuits instituted in the name of the deceased is unlawful from the beginning, and thus, the claim for succession of the heir’s property cannot be permitted (see Supreme Court Order 79Ma173, Jul. 24, 1979). (b) Plaintiff FL’s heir’s acceptance of the lawsuit cannot be permitted.
1) Article 64 of the Commercial Act may apply or apply mutatis mutandis to not only claims arising from commercial activities but also claims corresponding thereto (see, e.g., Supreme Court Decisions 2002Da64957, 64964, Apr. 8, 2003; 2013Da214871, Jul. 24, 2014). However, the claim for return of unjust enrichment in the instant case, for which the Plaintiffs seek, is paid by the Plaintiffs based on the apartment sale contract concluded by the Defendant as a commercial activity.