[공사대금][공1998.7.1.(61),1724]
In a case where part of the plaintiff's claim was partially dismissed at the first instance court, but the plaintiff did not file an appeal or incidental appeal, whether the court of first instance may file an appeal against the dismissal part at the first instance (negative)
In a case where the defendant appealed against the judgment of the court of first instance that partially dismissed the plaintiff's claim, but the plaintiff did not appeal or incidental appeal, the part against the plaintiff in the judgment of first instance was transferred to the appellate court due to the defendant's appeal, but it was not subject to the judgment of appellate court. Therefore, if the appellate court partly accepted the defendant's appeal and partly revoked the part against the defendant in the judgment of first instance and dismissed the plaintiff's claim against the plaintiff, it is limited to the part against the defendant in the judgment of first instance, and this part of the judgment against the plaintiff in the judgment of first instance is limited to the part against the defendant in the judgment of first instance, and it cannot be subject to the plaintiff's appeal. Thus, the appeal against the part
Article 392 of the Civil Procedure Act
[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Han-sung, Attorneys Lee Jong-soo et al., Counsel for plaintiff-appellant)
Plaintiff
Defendant
Suwon District Court Decision 97Na7858 delivered on December 24, 1997
The part of the judgment below against the plaintiff on gold 3,00,000 won and damages for delay thereof shall be reversed, and this part of the case shall be remanded to the Suwon District Court Panel Division. The remaining appeal by the plaintiff shall be dismissed.
The grounds of appeal are examined.
1. Summary of the judgment below
According to the reasoning of the judgment below, on May 1994, the court below determined that the Plaintiff’s receipt of KRW 90,000 from the Defendant and Nonparty 1 (excluding KRW 4,520,000, KRW 3000, KRW 900, KRW 2000, KRW 900, KRW 900, KRW 200, KRW 900, KRW 2000, KRW 200, KRW 300, KRW 200, KRW 300, KRW 4,520, KRW 520, KRW 90, KRW 200, KRW 950, KRW 90, KRW 200, KRW 9, KRW 500, and KRW 9, KRW 200, KRW 300, KRW 500, KRW 200, KRW 300, KRW 300, and KRW 9,000, KRW 500, KRW 300, KRW
Meanwhile, according to the reasoning of the judgment of the court of first instance, with respect to the plaintiff's claim of this case where the court of first instance claimed gold 23,900,000 won and damages for delay thereof, the court below first determined that the defendant is liable to pay gold 23,900,000 won to the plaintiff first, as in the judgment of the court of first instance, and that the defendant paid additional gold 10,000 won to the plaintiff around January 25, 1995, among the above repayment claims of the defendant, the defendant recognized that the defendant paid additional gold 10,000 won to the plaintiff around January 25, 1995, and rejected the remainder of the repayment claims as there is no evidence to acknowledge it. Accordingly, the court of first instance ordered the plaintiff to pay the remainder KRW 13,900,000
2. Determination
However, according to the records, the plaintiff's 90,00,00 won of the construction price of 90,000 won stated in Eul evidence 1 (30,000,000 won directly paid to the plaintiff at a signboard house) and 50,000,000 won of the bill of exchange (40,0000 won directly paid to the plaintiff on September 17, 1995) plus 10,000 won of the bill of exchange stated in Eul evidence 1 + 10,000 won of the receipt amount of 10,00,000,000 won stated in Eul evidence 2, 300,000 won of the bill of exchange (excluding the above amount of 0,000 won of the bill of exchange, 4,000,000 won of the non-paid bill of exchange, 4,000 won of the above amount, 300,000 won of the contract amount of 10,0005,0000 won of the payment.
Therefore, the gold KRW 90,00,000, paid by the Plaintiff to the Plaintiff on January 25, 1995, includes KRW 10,000 (the amount stated in the evidence No. 2, however, it is unclear whether or not the money was cashed). Thus, the court below should have judged the propriety of the Defendant’s defense for payment after further deliberation on this point, but without further examination, it erred in the misapprehension of the rules of evidence or incomplete deliberation, which affected the conclusion of the judgment by misunderstanding the Defendant’s defense for payment of KRW 10,00,000 as stated in the evidence No. 2. Thus, the ground of appeal pointing this out is with merit.
However, as seen earlier, if the defendant appealed against the judgment of the court of first instance that partially dismissed the plaintiff's claim, but the plaintiff did not file an appeal or incidental appeal, the part against the plaintiff in the judgment of first instance, i.e., the part against the plaintiff, i., the amount of KRW 10,000,000 (the amount claimed in KRW 23,90,000, i.e., the amount of KRW 13,900,000, which was the amount cited in the judgment of first instance), was transferred to the court below due to the defendant's appeal, but the part against the defendant in the judgment of first instance that partly admitted the defendant's appeal was revoked, and the part against the defendant in the judgment of first instance is limited to the part against the defendant in the judgment of first instance, and the part against the above plaintiff in the judgment of first instance cannot be subject to the plaintiff's appeal (see, e.g., Supreme Court Decision 92Da14892, Nov. 27, 1992).
3. Therefore, the part of the judgment of the court below against the plaintiff as to gold 3,00,000 won and damages for delay thereof shall be reversed, and this part of the case shall be remanded to the court below for a new trial and determination. The remaining appeal by the plaintiff is unlawful and dismissed, and it is so decided as per Disposition with the assent of all participating judges who reviewed the appeal.
Justices Jeong Jong-ho (Presiding Justice)