(영문) 대법원 2018.10.12.선고 2018다231871 판결

1. In cases where multiple persons with a common interest have appointed the parties, the appointed parties may file an appeal on behalf of all the parties up to the completion of the pertinent lawsuit, barring any special agreement (see, e.g., Supreme Court Decision 2003Da34038, Nov. 14, 2003). Meanwhile, the party’s selection may be cancelled or modified at any time for the future. If the appointed parties have withdrawn the appointment, they may not assert the validity of withdrawal unless the appointed parties or the parties have notified the other party or the court of the withdrawal of the appointment, but the withdrawal of the appointment shall not be explicitly and explicitly possible (see, e.g., Supreme Court Decision 2015Da31513, Oct. 15, 2015). In addition, the appointed parties should be selected from among many persons with a common interest, and where a lawsuit against the appointed parties becomes void due to the appointment of the parties or the adjudication becomes final and conclusive, 2006.

2. In full view of the circumstances indicated in its holding, the lower court determined that the instant appeal filed by the Defendant, A, and B, which was filed by the Plaintiff, was unlawful, on the ground that it was filed by a person who is not authorized to conduct the lawsuit, and was dismissed by the Defendant’s appeal, on the ground that: (a) the selected party, the Defendant, or the appointed party A, was selected as the designated party; and (b) the Defendant or the designated party A, notified the other party or the court of the withdrawal of the selection until the appeal

3. However, it is difficult to accept the above determination by the court below for the following reasons.

A. Review of the reasoning of the lower judgment and the record reveals the following facts.

① On July 1, 2003, the Defendant, together with B, jointly and severally guaranteed the obligation to pay goods to the said company according to a special contract entered into with D Co., Ltd.

② On June 10, 2016, the Plaintiff entered into a credit guarantee agreement with the designated party A, and received a loan by submitting a credit guarantee agreement issued by the designated party A to D Co., Ltd. as collateral. On July 11, 2017, the Plaintiff paid 220,000,000 won to D Co., Ltd. as collateral.

③ Accordingly, the Plaintiff filed the instant lawsuit against the appointed party A, the Defendant, and B, and the appointed party A did not dispute the claim against the Defendant via written answers, preparatory documents, etc., but actively disputed the lapse of the warranty period, the completion of extinctive prescription, etc. as to the claim against the Defendant.

④ However, on January 23, 2018, the first instance court rendered a judgment citing both the Plaintiff’s designated parties A, the Defendant, and B’s claims against the Defendant, and the first instance judgment was served on the designated parties A on January 25, 2018. On the fifth instance judgment, only the Defendant filed a petition of appeal with his/her name [Defendant C] on February 5, 2018, the period during which the appeal was filed, and the appointed parties A did not submit a petition of appeal. (b) We examine these facts in light of the aforementioned legal principles.

① At any time, the appointed party may withdraw the selection of the appointed party A and directly appeal as the party thereto. Since the withdrawal of the selection does not necessarily mean explicitly or explicitly, there is room to deem that the appointed party, if the Defendant filed an appeal in his/her name against the judgment against the first instance court, he/she expressed his/her intention to withdraw the selection implicitly by submitting the petition of appeal.

② Since the designated parties A did not dispute the claim against himself in the first instance trial, it is difficult to see the intention to file a lawsuit against the judgment against the first instance court, and it did not file an appeal against the judgment against the first instance court.

③ As the judgment of the first instance against the appointed party A became final and conclusive, the common interest between A and the Defendant becomes extinct as a matter of course, and as a result, the Defendant’s lawsuit was inevitable to proceed with the appellate trial. 4) In full view of the above circumstances, it is sufficient to interpret that the Defendant filed an appeal under his/her name even though the appointed party A, who is not a designated party A, did not directly file an appeal, and the Defendant or the appointed party A did not notify the other party or the court of the withdrawal of the appointment, expressed his/her intent to explicitly withdraw the appointment by submitting the petition of appeal. Therefore, the lower court should have determined the Defendant’s appeal lawful. Nevertheless, the lower court determined that the instant appeal filed by the Defendant merely because the appointed party was filed by a person without the authority to conduct the lawsuit. In so doing, the lower court erred by misapprehending the legal doctrine on the withdrawal of the appointment and the validity of the appointment, thereby adversely affecting the conclusion of the judgment.

4. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.