[손해배상(기)][공1995.6.1.(993),1976]
Whether the waiver of the right to appeal is legitimate, if the written agreement on waiver of the right to appeal is not submitted;
An appeal may be filed against a final judgment rendered by the high court and that rendered by the collegiate division of the principal district court as the second instance, and with respect to the final judgment of the first instance, only if both parties have agreed not to file an appeal after reserving the right to file an appeal and not to file an appeal, and in such a case, the agreement shall be made in writing. Therefore, if no document was submitted as to the agreement under the proviso of Article 360 (1) of the Civil Procedure Act while filing an appeal against the first instance judgment, the appeal shall be deemed unlawful, and thus, the defect shall not be corrected.
Articles 360(1) and (2) (Article 26(2) and 392 of the Civil Procedure Act
Supreme Court Decision 4285 civilianSang62 Delivered on January 13, 1953
Plaintiff
Defendant
Daegu District Court Decision 93 Gohap5284 delivered on December 23, 1994
The appeal shall be dismissed.
The costs of appeal are assessed against the plaintiff.
The appeal shall be examined ex officio by the court.
The final appeal may be filed with respect to the final judgment rendered by the High Court and by the collegiate division of the principal district court as the second instance, and with respect to the final judgment of the first instance, it is evident in light of the legal provisions of Article 392 and the proviso of Article 360(1) of the Civil Procedure Act, only if both parties have agreed not to file an appeal after the final judgment, to withhold the right to file an appeal and not to file an appeal (see, e.g., Supreme Court Decision 4285Da162, Jan. 13, 1953). In this case, the agreement above is clearly required in writing as a result of the application of Article 26(2) of the Civil Procedure Act pursuant to Article 360(2).
However, in the case of this case, the plaintiff filed an appeal against the judgment of the court of first instance with respect to the agreement under the proviso of Article 360 (1) of the Civil Procedure Act. Thus, the appeal of this case is unlawful and it cannot be corrected.
Therefore, without any need to decide on the grounds of appeal, the plaintiff's appeal is dismissed and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.
Justices Park Jong-ho (Presiding Justice)