▲ Lee Gi-chul, mother of a school violence victim, holds a press conference after a damages suit against lawyer Kwon Kyung-ae at the Seoul Central District Court in Seocho-gu, Seoul, on the morning of the 11th. (Photo: Yonhap News)
The bereaved family of the late Park Ju-won, a school bullying victim whose lawsuit was declared dismissed due to her lawyer's absence from court, has applied to the Supreme Court for a constitutional review, claiming that "the Civil Procedure Act, which deems an appeal withdrawn due to a legal representative's absence, is unconstitutional."
The legal team representing Park's mother, Lee Gi-chul, announced that they filed an application with the Supreme Court the previous day, requesting a constitutional review of Article 268, Paragraph 4 of the Civil Procedure Act regarding the "deeming of an appeal as withdrawn when parties fail to appear in appellate trials."
A constitutional review motion is a system where a court petitions the Constitutional Court for a constitutional review when the constitutionality of a law is a prerequisite for a trial.
If the application is dismissed or rejected, the parties may file a constitutional complaint with the Constitutional Court.
Lee Gi-chul, whose daughter took her own life after suffering from school violence, had hired lawyer Kwon Kyung-ae as her legal representative to file a damages suit against the perpetrators.
Although Lee won a partial victory in the first trial, Kwon failed to attend the appellate hearings three times between September and November 2022, leading the court to treat the appeal as withdrawn and resulting in a final loss.
Under paragraphs 1 through 3 of Article 268 of the Civil Procedure Act, if a party fails to appear in court three or more times, the lawsuit is deemed withdrawn.
Paragraph 4 of the same article applies this mutatis mutandis to appellate procedures, treating the appeal as withdrawn by the party.
Although Lee's side subsequently requested the resumption of the trial, the appellate court expressed regret on the 3rd, stating that "Kwon Kyung-ae violated her duty of care as a prudent manager," but added that "since the requirements of Article 268 of the Civil Procedure Act have been met, it cannot be reversed," thereby declaring the lawsuit ended by treating the appeal as withdrawn.
In response, after appealing to the Supreme Court, Lee's side argued that the unconstitutionality of the Civil Procedure Act, which served as the basis for deeming the appeal withdrawn, should be examined.
Lee's legal team argued, "The provision in question treats an appeal as withdrawn even though the party has never actually withdrawn it, ultimately stripping them of all opportunities to contest the facts in a trial of fact and destroying their substantive rights resulting from the finalization of the original judgment." They added, "In judicial practice, a representative's intent or negligence is treated the same as that of the principal, blocking any path to future relief."
They emphasized, "Even at the stage just before the withdrawal is deemed, there is no procedure to notify the principal of the risk, and the principal has no way of knowing that their lawsuit is disappearing. In particular, the deemed withdrawal of an appeal cannot be remedied due to the res judicata effect."
Meanwhile, Lee's side also filed a damages lawsuit against lawyer Kwon.
Last May, the Supreme Court finalized the compensation order for 65 million won in emotional distress while remanding the portion of the lower court's ruling that dismissed the claim for 90 million won in promised payments.
Accordingly, the Seoul Central District Court issued a recommendation for settlement ordering lawyer Kwon to also pay the 90 million won in promised funds.
(Photo: Yonhap News)
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