[1] The validity of a judgment rendered against the death of a party while the lawsuit is pending, and the validity of a takeover or appeal by an inheritor

[2] The effect of the selection of the designated party, and whether the appointment of the designated party is permitted to be limited to the instance

[1] In a case where a judgment is rendered after the interruption of a litigation procedure due to the death of one of the parties during the proceeding, and the pleading is concluded, the judgment is unlawful in the procedure that prevents the legitimate assignee from participating in the lawsuit, but the judgment cannot be deemed null and void as a matter of course. However, the judgment can only seek revocation by appeal or retrial on the ground of defects in the power of representation, considering the same as the case where the judgment was not legitimately represented by an agent. Thus, even in a case where a legitimate inheritor received a judgment after the judgment was rendered and received a request for resumption or a request for a final appeal and submitted a written appeal in the final appeal, the takeover and the final appeal shall be deemed legitimate, and the final appeal shall be deemed to be illegal. In a case where the final appeal was made without a judgment, the takeover and final appeal shall be deemed to be lawful. In light of Article 424(2) of the Civil Procedure Act by analogy, if the parties have ratified the original appeal procedure explicitly or implicitly after the judgment, the above grounds for appeal or grounds for retrial shall be

[2] In case where many persons who have a common interest appoint the parties, the selected parties may conduct the lawsuit on behalf of the parties until the completion of the lawsuit in question, and the appeal shall also be filed from such parties. However, the selection of the parties shall also be permitted from the beginning to the end to the end of the lawsuit, as long as the parties can cancel and change the future by an agreement of the general members, so that they can be qualified as the parties, in particular, from the beginning to a certain level. However, the effect of the selection shall continue until the termination of the lawsuit, unless there is an agreement on the limitation of the court at the time of

[1] Articles 233, 424, and 451 (1) of the Civil Procedure Act / [2] Article 53 of the Civil Procedure Act

[1] Supreme Court en banc Decision 94Da2844 delivered on May 23, 1995 (Gong1995Sang, 2116), Supreme Court Decision 94Da61649 delivered on February 9, 1996 (Gong1996Sang, 888), Supreme Court Order 9Da8971 delivered on May 30, 1998 (Gong1998Ha, 1844), Supreme Court Order 99Da8971 delivered on December 28, 199 (Gong200Sang, 364) / [2] Supreme Court Order 94Ma2452 delivered on October 5, 195 (Gong195Ha, 3718)

Plaintiff

Defendant 1 and six others

Defendant (Appointed Party)

Supreme Court Decision 2002Da14587, 14594 Delivered on August 23, 2002

Seoul High Court Decision 2002Na51717 delivered on June 12, 2003

The appeal by the Defendant (Appointed Party) is dismissed, and all of the appeals by the Plaintiff are dismissed. The costs of appeal by the Plaintiff are assessed against the Plaintiff, and the costs of appeal by the Defendant (Appointed Party) are assessed against the said Defendant.

We examine the grounds of appeal.

1. Judgment on the Plaintiff’s appeal

First, we examine the legitimacy of the plaintiff's appeal against the deceased non-party 1 ex officio.

In a case where a judgment is rendered after the interruption of litigation proceedings due to the death of one of the parties during the proceeding, and the pleading is terminated, the judgment is unlawful in the procedure that results in the exclusion of legitimate assignees who can participate in the lawsuit, but the judgment cannot be deemed null and void. However, the judgment can seek its revocation due to an appeal or retrial on the ground of defects in the power of representation, considering the same as the case where the judgment was not lawfully represented by an agent. Thus, even in a case where a legitimate inheritors have received a judgment upon request for resumption after the judgment was rendered or received a final appeal and submitted a written appeal, and followed the procedure at the final appeal, the takeover and the final appeal shall be deemed lawful, and the final appeal shall not be dismissed as unlawful. In light of Article 424(2) of the Civil Procedure Act, based on the presumption of Article 424(2) of the Civil Procedure Act, the above grounds for appeal or grounds for retrial shall be deemed null and void if it is ratified to be legitimate after the judgment of the party, explicitly or implicitly, (see, e.g., Supreme Court en banc Decision 94Da1948484.

According to the records, since the deceased non-party 1 died on December 14, 200 on which the lawsuit in this case was pending in the court of first instance, and the proceedings against the deceased non-party 1 were interrupted due to the delivery of the original copy of the judgment of the court of first instance to the attorney Kim Jong-Un, who was his legal representative, but the plaintiff filed an appeal and a final appeal against the deceased non-party 1 without following the lawful procedure of acceptance of the lawsuit against the deceased non-party 1, and the court below's judgment prior to remand, the judgment of the court below, the judgment after remand, and the case was remanded, and the plaintiff again filed an appeal against the deceased non-party 1. The deceased non-party 1's heir can be seen to have filed an application for resumption of the lawsuit with the court of first instance on October 14, 2003, and the plaintiff's appeal against the deceased non-party 1 cannot be seen to have been extinguished by all the grounds for appeal or ratification of the previous proceedings.

Meanwhile, even after receiving the notification of the receipt of the notification on July 16, 2003, the Plaintiff did not submit a legitimate appellate brief within the prescribed period (the Plaintiff’s appellate brief was filed on September 25, 2003, which was subsequent to the submission period), and there was no indication in the grounds of appeal in the petition of appeal filed by the Plaintiff.

2. Judgment on the appeal by Defendant (Appointed Party)

If a majority of the parties jointly interested have selected the parties, the selected parties may conduct the lawsuit on behalf of the parties until the completion of the lawsuit concerned, and the appeal as well as the appeal shall also be filed from such parties. However, the selection of the parties shall also be permitted for the purpose of allowing them to be qualified as the parties in the first instance and in particular, as long as they can be cancelled and modified in the future by the agreement of the general members. However, unless there is an agreement on the limitation of the court at the time of the selection of the parties, the effect of the selection continues until the completion of the lawsuit (see Supreme Court Order 94Ma2452, Oct. 5, 1995; Supreme Court Order 2000Da3711, 37128, Oct. 26, 2001, etc.).

According to the records, on March 21, 2002, the designated parties cancelled the selection activities of the former designated parties and appointed 4 persons as the designated parties. The designated parties 4 raised an incidental appeal against the judgment below prior to remand, which was served on the Plaintiff on March 27, 2002. In the remanded judgment, this court reversed and remanded all part of the judgment of the court below relating to the Plaintiff’s claim before remanding the case. After the remanding, the court below rendered a decision to partly change the judgment of the court of first instance in accordance with the purport of the remanded judgment on June 12, 2003. The original copy of the judgment was served on the appointed parties 4 on June 23, 2003, and the appointed parties were revoked on July 12, 2003, and the designated parties were remanded to the court below on July 12, 2003 (the designated parties).

In the same way, the appeal by the defendant (appointed party) is unlawful, since it is apparent that two weeks from the date when the original copy of the judgment of the court below was delivered to the designated party 4 at the time after the remand, and it was submitted after the lapse of two weeks from the date when the original copy of the judgment of the court below was lawfully delivered to the designated party 4, and its defect can not be corrected.

3. Therefore, the appeal by the Defendant (Appointed Party) is dismissed, and all of the appeals by the Plaintiff are dismissed. The costs of appeal are assessed against the Defendant. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Han-won (Presiding Justice)