(b) Whether a judgment or correction is made that raises the indication of the occupied part and the area among the judgments pronounced according to the result of appraisal on the status of wrong possession in the partition of co-owned property;

B. Even though the indication of each part and area of co-owned land by the applicant for a survey and appraisal is judged differently from the actual part and area of each applicant for a survey and appraisal, it cannot be deemed that such errors are evident in the whole process of the lawsuit, as well as that of the claim sought in accordance with the result of the appraisal, even though the applicant or the court rendered a judgment, it cannot be deemed that such errors are evident, and it is not permissible to improve the indication of the part and area of the land by the correction of the judgment and determination in accordance with the purport of the request by the applicant for the decision.

1. According to the records, the lower court (referring to the first instance court of Gwangju District Court; hereinafter the same shall apply) rendered a judgment of the special appellant on January 14, 1992, and dismissed the application for correction of the judgment of this case as it is without merit since the special appellant filed a petition for correction of the judgment of this case with the appellate court indicating that the special appellant is dissatisfied with the above dismissal decision of the lower court as to the partition of co-owned property in Gwangju-gu, Seo-gu, 1992 and 1,960 square meters (hereinafter the land in this case), respectively, and the indication of the special appellant's specific possession portion and its area are different from the actual possession portion and area of each special appellant, due to the mistake of the survey appraiser, and the special appellant filed a petition for correction of the judgment of this case to the effect that the special appellant is dissatisfied with the above dismissal decision of the lower court, and the court dismissed the same as the special appellant's appeal.

However, with respect to a decision dismissing a petition for correction of judgment without merit, it cannot be filed by the method of filing a petition for objection under the interpretation of the main text of Article 197(3) of the Civil Procedure Act, and the special appeal under Article 420 of the same Act is permitted. Even if the parties did not indicate that they are special appeal and that they are the appellate court, the court which received the petition of appeal shall treat them as special appeal and send the records of trial to the Supreme Court (see, e.g., Supreme Court Order 86Ma895, Nov. 7, 1986).

In this case, the original court sent records to the appeal department of the Gwangju District Court, and the same court's decision eventually leads to a decision made by a court which is not authorized, so this case shall be treated as a special appeal against the original court's decision.

2. In light of the records, although the indication of each part of possession and area of the special appellant on the land of this case, as alleged above by the special appellant, has been evaluated differently from the parts and area of the actual possession by the special appellant due to the mistake of the survey appraiser, it cannot be deemed that such error is evident in the data revealed during the whole process of the lawsuit, and it is not permissible for the special appellant to raise the indication of the part and area of the possession by the special appellant as a result of the correction of the judgment in accordance with the purport of seeking the decision by the special appellant, even though the special appellant or the court rendered the decision as to the purport of the claim sought based on the result of the appraisal, it cannot be viewed as a case where the contents of the judgment order are substantially modified.

Therefore, the court below's dismissal of the motion for correction of the judgment of this case is just and there is no error of law by misunderstanding legal principles such as theory of lawsuit, and unlike the order of the court below, there is no reason to argue that there is no illegality under Article 420

3. Therefore, all special appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Chocheon-sung (Presiding Justice)