In a case where the plaintiff filed a lawsuit with the plaintiff who is unaware of the death of the deceased, whether it is permitted to correct the indication of the deceased as the inheritor (affirmative) and the meaning of the inheritor who is interpreted as the actual defendant in this case

Article 249 of the Civil Procedure Act, Articles 1000 and 1043 of the Civil Act

[Plaintiff-Appellee] 2005Ma425 dated July 4, 2006 (Gong2006Ha, 1475)

Korea Asset Management Corporation (Attorney Kim Jong-seok, Counsel for defendant-appellant)

Busan District Court Order 2013Na20028 dated July 4, 2014

The order of the court below is reversed, and the case is remanded to Busan District Court Panel Division.

The grounds of reappeal are examined.

1. In a case where the plaintiff filed a lawsuit with the deceased person who is aware of the defendant's death, taking into account the contents and cause of the lawsuit, the purpose of the lawsuit to substantially resolve the dispute through the lawsuit, the plaintiff's request for correction of the defendant's indication after becoming aware of the death, etc., the defendant's indication may be corrected as the inheritor of the deceased person from the beginning, not the deceased who cannot be a party to the lawsuit but the deceased person's fault in the indication.

In addition, a person who actually succeeds to inheritance refers to a person who actually succeeds to inheritance, and a person who has renounced inheritance is placed in the same position as that of a person who has never succeeded to inheritance from the time of commencement of inheritance. Thus, even the first heir is not a person who has renounced inheritance, and even a subordinate heir is a person who has actually become a heir due to the renunciation of inheritance, etc. of a senior heir (see Supreme Court Order 2005Ma425, Jul. 4, 2006).

2. The record reveals the following facts.

A. On June 4, 1997, the non-applicant 1 borrowed KRW 10 million from the Korea Housing and Commercial Bank under the joint and several guarantee of non-applicant 2, and died on June 30, 200. On June 30, 200, the report of renunciation of inheritance was accepted on July 13, 200.

B. On March 27, 2003, the re-appellant, who was transferred the above loan claim from the Korea Housing and Commercial Bank, filed a lawsuit claiming the acquisition amount with the Busan District Court 2003Gada3175069, and the non-applicant 1 had already died. On September 30, 2003, the non-applicant 1 applied for the correction of the first party indication to be corrected to 3 and 4 other than the non-applicant 1's heir. On December 5, 2003, the court of first instance rendered a favorable judgment against the Plaintiff on December 5, 2003 after receiving the above application.

C. Nonparty 3 and 4 filed a subsequent appeal on November 20, 2013, and stated the said renunciation of inheritance. On July 2, 2014, the re-appellant again filed an application for correction of the second party indication, which is corrected from Nonparty 3 and 4 to Nonparty 5, 6, 7, and 8, the next priority heir.

D. On July 4, 2014, the lower court rendered a ruling of denying a request for correction of the indication of the party.

3. Although the re-appellant entered Nonparty 1 in the complaint of this case as the defendant, the contents and cause of the claim of this case as shown in the records of this case and the purpose of the lawsuit of this case as seen in Section 2, as seen in the above legal principles, the re-appellant filed an application for correction of the indication of the first and second parties with the defendant who was aware that the non-applicant 1 died, and was corrected as his heir, as the defendant, as the plaintiff did not know that the non-applicant 1 died, the re-appellant should be interpreted as his true heir from the beginning, not the non-applicant 1 who was incapable of being the party.

In this case, as the non-applicant 3, and 4 renounced inheritance to non-applicant 1, the following order inheritor 5,6,7, and 8 have succeeded to the non-applicant 1 from the time of commencement of the inheritance, the actual defendant of the lawsuit in this case shall be deemed to be 5,6,7, and 8 as the true heir of non-applicant 1.

Therefore, the first application for the correction of a party indication is erroneous because it is erroneous that the Defendant’s indication was corrected to Nonparty 3 and 4, not the true heir. The lower court, upon being bound by the above application, deemed that the second application for the correction of a party indication to the effect that the true heir’s correction of Nonparty 5, 6, 7, and 8 is legitimate, not the Defendant of the instant lawsuit, and that the second application for the correction of a party indication was lawful.

Nevertheless, the lower court erred by misapprehending the legal doctrine regarding the correction of a party’s indication, thereby adversely affecting the conclusion of the judgment.

4. Therefore, the order of the court below is reversed and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Min Il-young (Presiding Justice)