[건물명도등·손해배상(기)][공2003.7.15.(182),1534]
Whether a lawsuit for a counterclaim filed at the time of an appeal for a subsequent completion is terminated in cases where an appeal for subsequent completion is dismissed due to an illegality (affirmative)
In case where the defendant filed a counterclaim only when he filed a subsequent appeal against the principal lawsuit, the counterclaim shall also be extinguished if the appeal is dismissed as illegal.
Articles 173 and 412 of the Civil Procedure Act
Plaintiff (Counter-Defendant) 1 and 3 others (Attorney Lee Young-soo, Counsel for the plaintiff-appellant)
Defendant (Counterclaim Plaintiff)
Seoul District Court Decision 2001Na45125, 2002Na49773 Delivered on February 5, 2003
Of the judgment below, the part of the counterclaim claim is reversed. The instant counterclaim claim was terminated by the dismissal of subsequent appeal against the principal lawsuit. The appeal against the part of the judgment below on the principal lawsuit is dismissed. The costs of appeal are assessed against the Defendant-Counterclaim Plaintiff.
1. As to the main claim
According to the reasoning of the judgment below, the court below acknowledged the facts as stated in its reasoning based on the evidence adopted, and dismissed the appeal based on the fact that the defendant (Counterclaim Plaintiff; hereinafter referred to as "the defendant") filed an appeal against the principal lawsuit after the expiration of the period of subsequent appeal. In light of the records, the court below's measures are just and acceptable, and there is no violation of law of incomplete deliberation, and there is no error of law of misunderstanding facts in violation of the rules of evidence.
2. On the part of the counterclaim claim
In light of the records, prior to the judgment on the grounds of appeal on this part, the defendant filed a counterclaim after filing a subsequent appeal against the principal lawsuit. The court below dismissed the appeal on the ground that there is no evidence to acknowledge the claim as to the counterclaim, by dismissing the above subsequent appeal on the ground that it is unlawful.
However, as in the case of this case, where the defendant filed a counterclaim only at the appellate court while filing a subsequent appeal against the principal lawsuit, if the appeal is dismissed as illegal, the counterclaim shall also be extinguished. The court below erred in making a judgment on the principal claim in spite of no need to determine the counterclaim, so long as the above subsequent appeal was dismissed, the court below erred in making a judgment on the principal claim in spite of the absence of a need to determine the counterclaim. Since the defendant's appeal against the part of the principal claim is deemed to have no reasonable ground, the lawsuit of this case was terminated by the dismissal of the above subsequent
3. Therefore, without further proceeding to decide on the grounds of appeal as to the part of the judgment of the court below as to the counterclaim, this part of the judgment below is reversed, and the lawsuit of the counterclaim in this case is terminated, and the appeal as to the part of the judgment of the court below regarding the claim in this case is dismissed, and the costs of appeal are assessed against the defendant.
Justices Shin Hyun-chul (Presiding Justice)