사자명의소송에 관한 고찰

A Study on the Lawsuit Instituted Under the Name of the Deceased– With Special Reference to Cases -

It is an important matter who is a party in the lawsuit. The court of the lawsuit shall decide upon ex officio who is the concerned party and proceed with its trial on litigation. According to the leading cases, the court may fix the concerned parties by rationalizing away the whole purport of a written complaint, including the indication of parties, the gist and counts of the claim. The courts shall permit a correction for an indication of the parties when the parties entered in the complaint and the parties confirmed by them are deemed to be the same thing. Where the dead is entered as the concerned parties in the complaint, his/her successors may be fixed as the parties through objective and rational interpretation of the whole purport of the complaint taking all the circumstances of an individual case into consideration. But the correction of the indication is permitted in the court of first instance for protection of the benefit of the fixed party’s instance. When it is found in the first instance that the parties have been entered in the complaint was dead, the court shall issue an order to correct the indication. Where the plaintiff has not complied with such correction order, the court shall reject by judgement the lawsuit. When the lawsuit is instituted under the name of the deceased, the instituting does not fall under a demand by judicial proceedings having the effect of interrupting prescription, because there are no litigation relations among the plaintiff, defendant and court. But the successors get to participate in the proceedings by correcting of the indication in the first instance, their litigation relations would be formed. Where a judgement in the first instance is pronounced having been overlooked by the court the fact that the party entered in the complaint was dead, the judgement is invalid because of non-existence of their litigation relations. Since then the court should not proceed the litigation proceedings.