Lawsuit for the Partition of Co-owned Property | Judgment in a Case Concerning the Validity of Litigation Acts Performed by a Person with Parental Authority as the Statutory Agent of Minors

In this lawsuit for the partition of co-owned property, plaintiff A and the defendants had agreed to sell the real property at issue and to distribute the sale proceeds.

Seeking a partition of the co-owned property by judgment, plaintiff A, among them, filed a 🔗lawsuit for the partition of co-owned property against defendants B, C, D, E, F, G, H, and I.

Here, because H and I were minors, their statutory agent was G, the person with parental authority.

Up to the proceedings in the lower court of this lawsuit for the partition of co-owned property, G performed litigation acts on behalf of H and I as their statutory agent.

The Seoul Southern District Court, which adjudicated the lower court proceedings in this case, ruled on the merits on the premise that G had the statutory authority to represent the minor defendants H and I in performing litigation acts, and accordingly determined the distribution ratios of those entitled to distribution in the lawsuit for the partition of co-owned property.

However, ruling on the final appeal, the Supreme Court reversed the lower judgment in this lawsuit for the partition of co-owned property and remanded the case to the lower court for further proceedings.

Acts of Conflicting Interests Under Article 921 of the Civil Act

First, the Supreme Court cited Article 921 of the Civil Act as a reference provision.

This refers to an act that, by its objective nature, gives rise to a risk of conflicting interests between the person with parental authority and the child, or among several children subject to that parental authority, and it does not matter whether the person with parental authority intended such a conflict or whether a conflict of interests actually arose as a result of the act. (See Supreme Court, Decision of November 22, 1996, 96 Da 10270, among others.)

However, a lawsuit for the partition of co-owned property, by the objective nature of its proceedings, carries a risk of conflicting interests among the co-owners.

Accordingly, where several minors and the person with parental authority over them are parties to a lawsuit for the partition of co-owned property, a special representative must be appointed for each minor, and that special representative must perform the litigation acts on the minor's behalf.

If the person with parental authority performs litigation acts as the statutory agent of several minors, this violates Article 921 of the Civil Act and is void unless the minors lawfully ratify it.

Here, ratification means, under the Civil Act, supplementing a defect in a juristic act after the fact so as to render it complete.

The First Clause of Article 95 and Article 60 of the Civil Procedure Act

Under the first clause of Article 95 and Article 60 of the Civil Procedure Act, where there is a defect in litigation capacity, statutory authority of representation, or the grant of authority necessary for litigation acts, the court must set a period and order that the defect be cured.

It provides that, where a person with a defect in litigation capacity, statutory authority of representation, or the grant of authority necessary for litigation acts has performed a litigation act, and the cured party or statutory agent ratifies it, that litigation act takes effect retroactively as of the time it was performed.

Therefore, where a minor's statutory agent lacks statutory authority of representation, the court has a duty to set a period and order that the defect be cured, unless it is clear that the defect cannot be cured.

The court further held that a defect in statutory authority of representation may also be cured in the appellate court. (See Supreme Court, Decision of April 12, 2024, 2023 Da 313241.)

Accordingly, the Supreme Court held that, the lower court handling the lawsuit for the partition of co-owned property should have ordered the parties to cure the defect, and, if special representatives for H and I were appointed, should have served a copy of the complaint on those special representatives and had them represent the said defendants in performing the litigation acts.

The issue in this case was a significant judgment on how to construe, as a matter of legal doctrine, an act of conflicting interests under Article 921 of the Civil Act.

A lawsuit for the partition of co-owned property, by the nature of a suit filed because the co-owners have not agreed on a method of partition, carries a risk of conflicting interests as to all of the defendants.

A lawsuit for the partition of co-owned property is an indispensable joint litigation, in which all co-owners must be parties to the suit.

In other words, the determination is that, if the persons concerned are minors, a special representative should be appointed for each of them to undertake the litigation acts.

In a lawsuit for the partition of co-owned property, where interests are sharply intertwined, the client's interests may vary depending on how the matter is handled.

If you are considering litigation in connection with the partition of co-owned property, you are welcome to contact the 🔗relevant members of Daeryun Law Firm LLP at any time.