일부 상속인만을 소송수계인으로 잘못 표시한 판결에대한 상소의 효력범위 - 대법원 2010. 12. 23. 선고, 2007다22859 판결 -

Abstract

The civil proceeding is not closed, if the litigation representative exists even in the death of the proceeding party. It might be happened that the litigation representative records mistakenly the only part of successors as the full successors of the death party in a motion; moreover, the courts also make a judgement according to the motion. It is proper as the previous finding of the Korean Supreme Court that the case this article reviews declared as following:"The above judgement has force to the other successors who have been not recorded as the successor, and the judgement has been confirmed with the passing of the appeal period, because when the additional authority to appeal has been granted to the litigation representative of the death party and because even though the judgement is delivered to the litigation representative, the proceeding is not closed and the appeal period begins". However, it is not proper according to the doctrine of interpretation of procedural act that the case this article reviews declared as following:"If the litigation representative of the death party appealed the above judgement in the name of wrongfully recorded parties, it would be rational to consider the subject to appeal shall be the whole judgement that affected to the every right successors not otherwise herein reasonably provided."The appeal by the litigation representative of the death party has force only to the recorded successor in the motion, and the judgement is confirmed even to the other successors. It is rational to find the relief to the other successors through another appeal as the subsequent completion for lapse with their unresponsible cause or through a retrial for unproperly representative act through analogical application of Civil Procedural Act article 451.1.3.