[계약금반환][공1992.1.15.(912),292]
In case where the defendant only filed an appeal against the dismissal of the plaintiff's primary claim and the judgment citing only the conjunctive claim, and where the defendant made a statement that recognizes the primary claim at the appellate court's pleading, the validity of the protocol containing it
In a case where the primary claim and the conjunctive claim are consolidated, in which the first instance court dismissed the plaintiff's primary claim and rendered a judgment that only accepted the conjunctive claim, the main claim are also transferred to the appellate court. Therefore, if the defendant made a statement that he would recognize the primary claim in the appellate court's pleading, it is recorded in the protocol and has the same effect as the final and conclusive judgment.
Article 206 of the Civil Procedure Act
Plaintiff (Re-Appellant) 1 and 2 others
Defendant (Re-Defendant)
Busan High Court Decision 90Na33 delivered on July 19, 1991
All appeals are dismissed.
The costs of appeal shall be assessed against the plaintiff, etc.
In a case where the primary claim and the conjunctive claim are consolidated, in which the first instance court dismissed the plaintiff's primary claim and rendered a judgment that accepted only the conjunctive claim, the primary claim are also transferred to the appellate court. Therefore, if the defendant made a statement that he accepts the primary claim in the appellate court's pleading, it would have the same effect as a final and conclusive judgment by stating it in the protocol. The conclusion that the lower court dismissed the request for reexamination of this case is justifiable and it is not acceptable to appeal
The appeal is without merit, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.
Justices Kim Jong-soo (Presiding Justice)