Whether an independent party's application for intervention is legitimate in a lawsuit for retrial instituted after the period for retrial expires (negative)

Since an independent party's participation requires that the lawsuit to be participated is being lawfully pending in the court, in a case where the principal lawsuit between the original and the defendant is dismissed on the ground of the lapse of the period for retrial in the lawsuit for retrial which was already finalized, the application for intervention shall be deemed unlawful since the continuation of the lawsuit to be participated has not been made.

Article 72 of the Civil Procedure Act

[Judgment of the court below]

Defendant (Re-Defendant) 1 and six others

Intervenor of an independent party

Busan District Court Decision 79Na1,80Na4 delivered on February 20, 1981

The part of the judgment of the court below which cited the claims of the independent party intervenor shall be reversed, and the application for intervention of the said intervenor shall be dismissed.

The plaintiff's remaining appeals are dismissed.

All costs of appeal are assessed against the plaintiff.

1. We examine the Plaintiff’s agent’s grounds of appeal.

According to the records, since the plaintiff was already aware of the grounds for retrial in January 22, 1977, as stated in the judgment of the court below, the judgment of the court below that the lawsuit in this case was unlawful since it was filed after the period for retrial expired.

2. However, the court below accepted the intervenor's claim against the plaintiff on the ground that the independent party intervenor filed an application for intervention and part of the real estate which is the object of the lawsuit in this case is owned by the intervenor in this case. The independent party's claim against the plaintiff on the ground that the plaintiff's claim for confirmation of ownership is accepted. If the plaintiff and the defendant dismissed the lawsuit for retrial on the ground that the lawsuit for intervention is lawfully pending in the court, as in this case, which was brought after the main lawsuit between the plaintiff and the defendant already became final and conclusive, on the ground that the period for retrial has expired, the lawsuit for intervention is unlawful, since the lawsuit for intervention is not pending in the lawsuit for retrial. Further, the independent party's intervention requires a separate claim consistent with the claim for the main lawsuit against both the plaintiff and the defendant (see Supreme Court Decision 80Da175176 delivered on December 9, 1980). In this case, the above intervenor is merely seeking confirmation of ownership against the plaintiff and does not have any claim against the defendant, and thus the above independent party's claim for intervention cannot be dismissed.

Nevertheless, the court below's excessive acceptance of the intervenor's claim against the plaintiff by the court below constitutes a violation of laws and regulations against justice and equity by interpreting the legal principles on the intervention of an independent party. Therefore, this part of the judgment of the court below shall be reversed.

3. Therefore, the part accepting the claim of the above intervenor among the judgment below is reversed, and this part is deemed sufficient in accordance with the above facts and therefore, the above intervenor's motion is dismissed. The remaining grounds of appeal by the plaintiff are dismissed. It is so decided as per Disposition by the assent of all participating Justices by applying the provisions of Article 89 and the proviso of Article 92 of the Civil Procedure Act to the bearing of litigation costs.

Justices Lee Lee Sung-soo (Presiding Justice)