소송계속 중 당사자의 사망에 따른 소송관계 - 판례를 중심으로 -

Where a party has died during the pendency of action, the proceedings are interrupted at the moment that rights or legal relations, the matter of the lawsuit, are the subject of an inheritance. On the sidelines, inheritors of the dead party ipso jure succeed the deceased’s status as litigants under the Civil Procedure Act. It is promoting the consonance between guarantee of the successors’ procedural rights and judicial economy through that it allows the progress of proceedings in case of no need to ensure of their rights as well as makes sure their rights by interruption of proceedings while recognizing ipso jure succession of his status as litigants. There is a special authority for filing an appeal, an attorney has powers to take individual litigation act and file an appeal. Filing an appeal can work to defeated inheritors advantage, and it will not violate their procedural rights even acknowledging the survival of the attorney’s powers for appealing. Where the dead party has authorized the attorney to file an appeal, he/she has the authority to file an appeal for the inheritors who have succeeded the deceased’s status as litigants. Therefore, when the authentic copy of a judgment is served on the attorney, a period for filing an appeal shall progress, and when the period has expired, the judgment shall become final and conclusive. Where the attorney has filed an appeal based on the authorization, his/her powers of attorney shall be extinguished, and the proceedings shall be interrupted. Litigation relations of co-inheritors shall progress separately from the others, while some inheritors who took over the proceedings in an original instance and were entered as the parties on a judgment of the original court filed directly an appeal, the others, who were omitted from takeover in the instance and were not entered as the parties on the judgment, did not appeal. Then the judgment on the others shall become final and conclusive by the expiration of the period for filing an appeal. But when the co-inheritors who had been omitted from the takeover could not participate in the proceedings because they were not aware of the pending in a court, they may subsequently complete the appeal in so far as there were no attorney’s faults which were attributable to the omission from the takeover. If there were his faults attributable to the omission from the takeover, the omitted co-inheritors may make a petition for a retrial against the judgment on their share of the inheritance by the inference of the Article 451, paragraph (1) 5 of the Civil Procedure Act. Where the inheritors of the deceased were indicated as the parties on the original judgment, effects of the judgment shall be binding on the omitted co-inheritors even if only some of the co-inheritors were entered as the parties in the field of ‘party name’ of the written judgment. If the appeal has been filed wholly against the original judgment by entering all inheritors were written as the parties in the party name field as appellants or appellees based on the original judgment, the omitted co-inheritors should be the appellants or the appellees by an objective and rational interpretation of the purpose of the entire written appeal.