The validity requirement of the non-prosecution agreement

The agreement to bring an action, one of the passive litigation requirements, is within the scope of the right to be disposed of by the parties to the agreement, and is allowed when limited to a specific legal relationship, and is valid at the time of the agreement.

Article 226 of the Civil Procedure Act (Institution of Lawsuit)

Supreme Court Decision 70Da1284 delivered on August 31, 1970 (No. 18-2, 283) Supreme Court Decision 76Da2920 Delivered on April 12, 197 (Gong1977, 1037)

Plaintiff

Defendant

Seoul District Court Decision 98Na37506 delivered on November 26, 1998

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

The grounds of appeal are examined.

The evidence No. 6, which is a material for which the agreement between the Plaintiff and the Nonparty on January 24, 1994 was recognized, states that “The Plaintiff and the Nonparty agree not to assert any right in respect of any of the lineal ascendants and descendants between themselves, including themselves, prior to January 24, 1994.”

However, the court below upheld the judgment of the court of first instance which dismissed the lawsuit on the ground that the agreement to waive the right was an agreement to the non-party to the lawsuit, and that the non-party, as the representative of the defendant, did not reach such agreement or was in the nature of a contract for the defendant, who was a third party, was in violation of the non-party agreement on the non-party’s lawsuit,

However, the agreement to bring an action, one of the requirements for passive lawsuit, is permissible when it is limited to a specific legal relationship as it is within the scope of the right of disposal by the parties to the agreement (see, e.g., Supreme Court Decision 76Da2920, Apr. 12, 1977). It is effective as to an anticipated situation at the time of the agreement (see, e.g., Supreme Court Decision 70Da1284, Aug. 31, 1970).

In this case, even if the waiver agreement of right is deemed to be a non-party agreement, the validity of the non-party agreement as a non-party-party-party-party-party-party-party-party-as-party-as-party-as-party-as-party-as-party-as-the-party-as-party-as-party-as-party-as-party-as-party-as-party-as-the-party-as-party-as-counter party-as-as-the-counter party-as- pursuant to the agreement shall not extend to the non-party-as-party-as-the-party-as-party-as-party-as-

Furthermore, there is a lack of materials to deem that the agreement was made in the form of a contract for the defendant or for a third party, and even if such circumstances are recognized, in the testimony of the non-party to the witness of the first instance trial who is the party to the agreement, the dispute of this case was not at the time at which the agreement was made, and thus, it was not at the time at which the dispute of this case could be entirely anticipated, and thus, it cannot be invoked as an effective action agreement between the plaintiff and the defendant.

Ultimately, in light of the legal principles as seen earlier, the agreement cannot be deemed as having met the effective requirements as the agreement between the Plaintiff and the Defendant, and thus, it is not reasonable to readily conclude that the Plaintiff’s lawsuit in this case is unlawful on the ground of such agreement.

However, the court below's rejection of the plaintiff's lawsuit of this case and maintenance of the first instance court's disposition which did not proceed to the deliberation of the merits would not fully examine the circumstances that the agreement is valid to the defendant of this case, or would be a result of misunderstanding the legal principles concerning the agreement on the introduction of an action. The ground of appeal disputing this point is justified.

Therefore, the judgment of the court below shall be reversed, and the case shall be remanded to the court below for a new trial. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Jong-sik (Presiding Justice)