제소전 사망한 자를 피고로 한 소송에 관한 대법원 판례에 대한 고찰

초록

The aim of this paper is to grasp legal principles of Supreme Court cases dealing with suits raised against defendants who died before filing of complaints and review their appropriateness. Supreme Court has long been held that when a person indicated as defendant in a complaint died earlier before filing, if a plaintiff had no knowledge of it before filing, successors of the deceased are actually defendants, and thus the plaintiff can correct the indication of defendant from the deceased to the successors. Supreme Court Decision 2010Da99040 decided on March 10, 2011 held that even if a plaintiff had known that a person indicated as defendant died before filing, the same legal principles still apply. The decision, when accompanied by other case laws regarding the issue, tells us the whole picture of the Supreme Court’s legal principles: that the Supreme Court regards the deceased as the principal defendant and the successor as the secondary defendant; and this scheme is to give a plaintiff, whose means to get relevant information regarding death of his obligator is practicall limited, a chance to halt the progression of statute of limitation, during the first the instance proceeding. Supreme Court Decision 2014Da34041 decided on January 29, 2015 held that the same principles apply when a person indicated as defendant died after filing of a complaint before service of the complaint. But in the situation, the principles of succession of proceedings should apply for proper outcome. With the approach, the outcomes would be consistent and appropriate among civil litigation proceedings, preliminary attachment proceedings and Payment order proceedings.

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