[가옥명도(본소)·소유권이전등기말소(반소)][집17(1)민,347]
An appellate court may make a preliminary counterclaim without consent of the counterclaim defendant.
The appellate court may make a preliminary demand for counterclaim even without consent of the counterclaim defendant.
Article 242 of the Civil Procedure Act
Plaintiff (Counterclaim Defendant) and one other, Counsel for the plaintiff-Counterclaim defendant-appellant
Defendant-Counterclaim Plaintiff (Attorney Seo-yang et al., Counsel for the defendant-Counterclaim plaintiff)
Daegu High Court Decision 65Na526, 527 decided May 3, 1968
Each appeal by the plaintiff and the defendant shall be dismissed.
The costs of lawsuit arising from the plaintiff's appeal shall be borne by the plaintiff, and those arising from the defendant's appeal shall be borne by the defendant.
The grounds of appeal by the Plaintiff (Counterclaim Defendant hereinafter referred to as the Plaintiff) are examined.
However, even in the appellate court pursuant to Article 243 of the Civil Procedure Act and Article 235 (1) of the same Act, the plaintiff may lawfully make the preliminary counterclaim even if the plaintiff did not change the foundation of the counterclaim and delay the litigation procedures in case of the alteration of the new counterclaim. In this case, the court below's decision was made on the condition that the claim for the preliminary counterclaim is not accepted at the time of the original purchase, on the condition that the plaintiff's claim for the preliminary counterclaim is not accepted at the time of the original purchase, and it is justifiable to hold that the preliminary counterclaim by the plaintiff was legally filed, even without the consent of the defendant for the counterclaim. The arguments are groundless.
The grounds of appeal No. 2 are examined.
However, it is justifiable that the defendant (Counterclaim plaintiff hereinafter the defendant) paid 498,400 won to improve the building of this case in order to improve the building of this case, and it is recognized that there is an increase in the value thereof, and the appeal to this issue cannot be adopted.
The supplementary statement in the grounds of appeal submitted by the Plaintiff Shodong-ho was submitted after the lapse of the period for submitting the appellate brief, and thus, the decision is omitted.
The defendant's attorney's grounds of appeal are examined.
However, the part that the defendant offered the real estate in this case to the plaintiff as a security for the disputed obligation and did not sell it to the plaintiff is not recognized by the court below, and there is no appeal to discuss the legitimate evidence cooking and fact-finding by the court below on the premise that this fact exists
Therefore, each appeal filed by the plaintiff and the defendant is dismissed without merit. It is so decided as per Disposition by the assent of all participating judges by applying Articles 95 and 89 of the Civil Procedure Act to the burden of litigation costs for the appeal.
Supreme Court Judge Hongnam-gu (Presiding Judge)