소제기 전 원고의 사망, 그리고 소송대리인의 대리권과 소송수계 －대법원 2016. 4. 29. 선고 2014다21049 판결을 중심으로－

Abstract

This article is intended to analyse the supreme court decision 2014 da1049 decided April 29, which has several civil procedure law isues on the remedy for sucesors of a party died before filng a lawsuit, powers of atorney delegated by a party who died before filng a lawsuit, and sucesors’ proceding takeover in supreme court procedings. Firstly, the Supreme Court has maintained the positon that a lawsuit brought by the name of dead man or women should be rejected as inadmisible for deficit of capacity for being party, and the rectifcation of plaintif is not alowed, but on the contrary, rectifcation of defendant is widely alowed as a remedy of inadmisible lawsuit. Basicaly I agre with the Supreme Court’s precedent. But if a sucesor who has no legal knowledge and unwitingly describe his or her predecesor as a plaintif in the writen complaint have involved the lawsuit as de facto party, and delegated powers of atorney, he or she should be alowed to alterate the plaintif from the predecesor, dead man or women, to the sucesor as a remedy of the inadmisible lawsuit. Secondly, the Supreme Court has the positon that powers of atorney shal not be extinguished even if the plaintif died before his or her atorney’s filng a lawsuit. I generaly agre with that positon, which interprets aplication scope of Civil Procedure Act §95 ①, death of the party, clause of non-extinction of powers of atorney, widely to the death of party before filng a lawsuit. A lawsuit filed by an atorney whose plaintif died after having delegated powers of atorney is admisible, and the procedings shal not be interupted(Civil Procedure Act §238). Thirdly, if powers of atorney are extinguished, the procedings are interupted, and the party’s sucesor who suceded the party’s positon upon his or her death by law shal take over the procedings. If a new atorney apointed by the sucesor filed an apeal by the name of the dead plaintif, the sucesor shal take over the procedings at the apelate court, then the defects are cured retroactively. Lastly, the Supreme Court has the positon that request for takeover of procedings is not alowed after the submision period of writen statement of grounds for apeal to Supreme Court(Civil Procedure Act §427), but that submision period clause shal not be aplied to the maters to be inspected ex oficio by the court(Civil Procedure Act §434). The sucesor’s takeover of procedings should be alowed until the pronouncement of Supreme Court judgement.