Under Article 81 of the Korean Civil Procedure Act(hereafter, called KCPA) which stipulates successor’s intervention, the successor will apply for intervention in accordance with the provisions of Article 79 of the KCPA. If the inheritee apparently ...
Under Article 81 of the Korean Civil Procedure Act(hereafter, called KCPA) which stipulates successor’s intervention, the successor will apply for intervention in accordance with the provisions of Article 79 of the KCPA. If the inheritee apparently does not contend for succession, the successor does not need to litigate against the inherittee separately. And the inheritee may withdraw from the procedure. However, if the other party does not agree with the withdrawal, the inheritee has to inevitably remain in the process. At this time, the form of co-litigation between the inheritee and successor is a ordinary co-litigation, which is an established position of the Korean Supreme Court(hereafter called KSC) in the previous cases. The KSC, however, ruled in this case that the co-litigation between the two parties should be subject to Article 67 of KCPA, a special provision that is applied to the indispensible co-litigation. The KSC, on the basis of changing its previous position, said that it should be applied the provisions of indispensible co-litigation, as long as the plaintiff's claims remain intact in the case of succession because one-sided Intervention as Independent party against either and preliminary or selective co-litigation were introduced under the revision of the 2002 KCPA, to prevent any inconsistency and compromise in judgment on the two claims in the same proceedings. In other words, Article 81 stipulates that the successor shall participate in a suit in accordance with Article 79 of the KCPA on the intervention as independent party, which is subject to Article 67 of the special provisions on the indispensible co-litigation, in paragraph 2, so Article 81 provides the basis for the application of the special provisions on the indispensible co-litigation. However, if the inheritee apparent does not contend for succession, the conditions for one-sided Intervention as independent party against either are not met because there is no conflict between the three parties. Furthermore, change of the opinion in this case is not reasonable because preliminary or selective co-litigation cannot be valid without a application of party.