Whether ratification of procedural acts by a person defective in the power of attorney can be made even in the final appeal (affirmative)

[1] Articles 60 and 97 of the Civil Procedure Act

Supreme Court Decision 69Da511 Decided June 24, 1969 (Gong17-2, 230), Supreme Court Decision 81Da397 Decided January 22, 1985 (Gong1985, 350), Supreme Court Decision 94Nu1343 Decided November 29, 1996 (Gong197Sang, 234), Supreme Court Decision 96Da2527 Decided March 14, 197 (Gong197Sang, 1083)

Kim Jin (Attorney Kang Jong-soo, Counsel for the defendant-appellant)

Kim Jong-soo

Busan High Court Decision 2003Na18067 delivered on October 15, 2004

The judgment below is reversed, and the case is remanded to Busan High Court.

1. The court below held that the lawsuit of this case was unlawful since the plaintiff's power of attorney of the court of first instance was not proven, since it was filed by the representative of the court of first instance, who is responsible for the claim for and receipt of the purchase price of this case. The plaintiff's certificate of personal seal impression attached to the above power of attorney was unclear whether the plaintiff himself was directly issued, and since August 198, it was doubtful whether the above power of attorney was actually actually prepared or the corresponding measure was not implemented even though the court of first instance ordered the above power of attorney of the court of first instance or the letter of delegation of the lawsuit against the plaintiff of the court of first instance to obtain authentication from a notary, since it was not proved that the plaintiff's power of attorney of the court of first instance was not legitimate, since the lawsuit of this case was filed by a person without legitimate power of attorney.

2. According to Article 60 of the Civil Procedure Act which applies mutatis mutandis to the attorney under Article 97 of the same Act, the litigation by a person who is defective in the power of attorney shall have retroactive effect upon ratification of the litigation act by the party himself or the corrected attorney. Such ratification may also be conducted in the final appeal (see, e.g., Supreme Court Decisions 69Da511, Jun. 24, 1969; 94Nu1343, Nov. 29, 1996; 96Da2527, Mar. 14, 1997).

However, the legal representative of the court of final appeal of this case asserts that when the plaintiff submitted a letter of delegation (which was newly made after the decision of the court below) that all powers concerning the claim and receipt of the purchase price of this case including the appointment of attorney-at-law is valid, the act of litigation by the legal representative of the court of first instance can be seen as ratified even if there was no legitimate power of attorney of the court of first instance to the legal representative of the court of first instance, so the act of litigation in the lawsuit of this case and the act of litigation in the court of first instance in the court of first instance becomes retroactively effective at the time of the act, and therefore the judgment of the court below which dismissed the lawsuit of this case cannot be maintained any longer.

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jack-dam (Presiding Justice)