[1] Whether a legitimate representative can be ratified in the final appeal for litigation conducted by the representative of an unincorporated association at a fact-finding court (affirmative)

[2] Whether a special representative appointed pursuant to Article 62 of the Civil Procedure Act, which applies mutatis mutandis under Article 64 of the same Act, has the authority to perform the same litigation as the representative of a corporation or an association which is not a corporation (affirmative)

[3] The case holding that in a case where Gap, who is not a legitimate representative, filed a lawsuit on behalf of an unincorporated association, but the appellate court asked questions about its power of representation, appointment of a special representative was made pursuant to Article 62 of the Civil Procedure Act, which applies mutatis mutandis under Article 64 of the same Act, and ratification of all the litigation acts conducted by the legal representative Gap in the appellate court, the case holding that Gap's all the litigation acts on behalf of the unincorporated association have retroactive effect at the time of such act

[1] Articles 52, 60, 62, and 64 of the Civil Procedure Act / [2] Articles 52, 62, and 64 of the Civil Procedure Act / [3] Articles 52, 60, 62, and 64 of the Civil Procedure Act

[1] Supreme Court Decision 96Da25227 delivered on March 14, 1997 (Gong1997Sang, 1083)

Korean Non-School Teachers (Law Firm Jeongse, Attorneys Park Jong-ho et al., Counsel for the plaintiff-appellant)

Non-School Teachers' Credit Union (Law Firm Shin & Lee, Attorneys Han-woo et al., Counsel for the plaintiff-appellant)

Daegu High Court Decision 2007Na5374 Decided December 23, 2009

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

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

The procedural acts conducted by the representative of an unincorporated association shall have retroactive effect upon the ratification of the procedural acts by the representative who has lawfully acquired the qualification as the representative after the procedural acts conducted by the representative, and such ratification may also take effect on the court of final appeal (see Supreme Court Decision 96Da2527 delivered on March 14, 197, etc.).

On the other hand, in case where there is no representative of a juristic person or an association which is not a juristic person or it is impossible to exercise its power of representation, the special representative appointed pursuant to the provisions of Article 62 of the Civil Procedure Act (hereinafter referred to as the "Act") which is applied mutatis mutandis pursuant to Article 64 of the Act may have the same authority as the representative of an association which is not

After recognizing the facts stated in its reasoning based on the adopted evidence, the lower court determined that the instant lawsuit is unlawful on the ground that the Nonparty, who filed the instant lawsuit on behalf of the Plaintiff, a non-corporate association, cannot be deemed as a person appointed as the Plaintiff’s representative according to lawful procedures.

However, according to the records, the above non-party filed the lawsuit on behalf of the plaintiff and filed an examination of the representative authority at the court below, and applied for the appointment of a special representative pursuant to Article 62 of the Act applied mutatis mutandis by Article 64 of the Act. The court below accepted the application and rendered a decision on September 30, 2009 that the above non-party should be appointed as a special representative of the plaintiff. After the judgment of the court below dismissed the lawsuit of this case, the court below submitted a petition of appeal on behalf of the plaintiff. The above non-party's vindication, the legal representative of the plaintiff at the court below, submitted a petition of appeal on behalf of the plaintiff, and the above non-party appointed as the plaintiff at the court of final appeal at the court of final appeal on behalf of the plaintiff. The plaintiff's legal representative

If so, according to the above legal principles, all the litigation conducted by the above non-party on behalf of the plaintiff was retroactively effective at the time of the act, and therefore, the judgment of the court below which dismissed the lawsuit of this case on the ground that the above non-party is not entitled to represent the plaintiff is eventually illegal. The ground of appeal on this point is with merit.

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.

Justices Kim Young-ran (Presiding Justice)