소송계속 중 당사자의 사망과 판결의 효력

Article 233 of the Civil Procedure Act provides that proceedings of a pending lawsuit shall be interrupted upon the death of a party to the lawsuit. But the interruption is terminated and the proceedings so interrupted revive when the proper party undertakes the proceedings. If the deceased party is represented by an attorney, however, the proceedings are never interrupted. When proceedings of a lawsuit are interrupted, no participant in the lawsuit, neither parties to the lawsuit nor the court, may continue litigation. If the court ignores the interruption and pronounces a judgment, whether such judgment is valid will become a question. The conclusion on this question will depend upon whether the deceased party’s heir can succeed to the decedent’s status by operation of law without affirmatively undertaking the proceedings. If the heir cannot succeed to the deceased party’s status by operation of law but can succeed to the status only by affirmatively undertaking the proceedings, it cannot be deemed that an adversarial structure between the parties has been formed before the heir undertakes the proceedings and thus the judgment pronounced in disregard of the interruption of the lawsuit shall not be regarded as valid. According to the view that denies succession by operation of law, a party to an action in terms of the formal concept of parties, which has been adopted as today’s concept of parties, is a person who demands the protection of his/her rights or is demanded to protect the other party’s rights in the action, and the heir becomes a party, according to such formal concept of parties, only when the heir declares him/herself as a party by undertaking the proceedings after the death of the deceased party. However, such interpretation is inconsistent with the Civil Procedure Act that provides that the attorney’s power to represent a party in a lawsuit shall not be extinguished even when the party is dead and the proceedings of the lawsuit shall not be interrupted. The formal concept of parties merely requires that the criteria for the determination of parties shall be objective and clear but does not have a logically inevitable relation with the declaration theory. Since the theory that denies succession by operation of law has the problems discussed above, it is the majority view and the position of precedents to affirm succession by operation of law. Therefore, it is interpreted that a judgment made on the premise of affirming succession by operation of law, while ignoring the interruption of proceedings, is illegal but still valid. Although the court may pronounce a judgment without the interruption of proceedings, if the deceased party to a pending lawsuit is represented by an attorney, the practical necessity of guaranteeing an heir who has not undertaken proceedings the right to intervene in proceedings still exists. According to the principle of representation by tiers of court under the Civil Procedure Act, the attorney’s power to represent in a lawsuit is limited to each tier of court, and thus the attorney’s power to represent is extinguished by service of the judgment and the proceedings are interrupted. However, if an attorney is given a special power for appeal, a conclusion that the judgment will become final and conclusive can be drawn because the attorney’s power to represent still remains effective even when the judgment is served and thus the period for appeal continues to run without the interruption of proceedings. Based on such reasoning, precedents hold that a judgment becomes final and conclusive even where the heir does not undertake the lawsuit, if the attorney is given a special power for appeal. However, it is hard to agree with such conclusion in that the contingency under which an attorney was given a special power by a deceased party causes a critical and ultimate consequence of the conclusion of a judgment to the deceased party’s heir. Since the attorney retained by a deceased party has no fiduciary relationship with the deceased party’s heir, it is more reasonable to interpret that the special power given by the deceased party to the attorney ceases to be effective upon the party’s death. According to such interpretation, the heir’s right to intervene in proceedings of a deceased party’s lawsuit before undertaking over the proceedings can be practically guaranteed.