당사자 사망을 간과한 판결에 대한 상소와 재심청구

Abstract

If a plaintiff institute a lawsuit against a defendant who had already died, or the defendant dies before the complaint is delivered to the defendant(from this time the lawsuit is pending), the procedure is illegal(unqualified). In this case, according to The Supreme Court, the plaintiff can correct the party(defendant) with the successor, who is the real party, but the successor can not success the procedure; if the court dosen’t realize the defendant is dead and pronounce a judgement, the judgement is ineffective, accordingly the appeal and retrial is not permitted. But as an present writer’s suggestion, the successor can success the proceedings, and file an appeal, in order to settle the dispute in single procedure; economic procedure. If a party dies while an action is pending, the proceedings are interrupted and his status as a party is succeeded by his successor. In this case, if the court overlooks the death of party and pronounces a judgement, it is effective to successor (including the effect of res judica, after being decided), accordingly the appeal is permitted. According to The Supreme Court, in this case, the successor can file the retrial. But the retrial is exceptional and extraordinary solution, so in the case that the party has the adequate procedural chance in the procedure-including the appeal, the retrial should not be permitted. In conclusion, when a party dies after making a final appeal, but before expiry of the term for a statement of grounds of the final appeal, if the court dismisses the final appeal, immediately the judgement become conclusive, so in this case the successor of the party deceased is permitted to make the retrial. Equally when the other party dies during the proceeding of final appeal, before expiry of the term for a written answer, if the final appeal results in favor of the appellant and immediately the judgement become conclusive, in this case the successor of the party deceased is permitted to make the retrial.