당사자의 사망이 소송절차에 미치는 영향

Abstract

If a party dies while an action is pending before a court, the proceedings are interrupted and his status as a party is succeeded by his successor pursuant to Acts. In this case, the proceedings shall be taken over by his successor, an administrator of inherited property, or any other person who is bound to continue the lawsuit pursuant to Acts. If the court doesn’t realize a part is dead during pending lawsuit and pronounce a judgement against him, the judgement is effective, and his successor can attack it by filing an appeal or a retrial. If the judgement is conclusive, it has the effect of res judicata to dead party's successor. The successor take that effect not as a ‘successor’ of Civil Procedure Act §218 (1) but as a ‘party’ of Civil Procedure Act §218 (1). If a plaintiff unknowingly institute a lawsuit against a defendant who had already died before an lawsuit is pending, he can correct the mistake, namely, change the party with the successor. According to The Supreme Court it is not party-alteration but party-rectification, which makes interruption of prescription is able to begin when the plaintiff files the complaint against to the dead defendant. But it would be a party-alteration pursuant to Civil Procedure Act §260 because a new person is entered into the proceedings through changing parties. A judgement rendered to dead party is null. It has no claim preclusion.