[임대료등][집15(3)민,126]
In a case where the plaintiff revised the purport of the claim in the appellate court which appealed only against the defendant, the case that recognized it as an incidental appeal.
Since the plaintiff won the entire decision, the plaintiff extended the purport of the claim in the case where only the defendant appealed without filing an appeal to the extent that it was disadvantageous to the defendant, the plaintiff should be deemed to have filed an incidental appeal to that extent.
Article 372 of the Civil Procedure Act
Ilish Industries Co., Ltd. and one other
Korea Ocean Fisheries Corporation
Seoul High Court Decision 66Na1514 delivered on June 22, 1967
The appeal is dismissed.
The costs of appeal are assessed against the defendant.
We examine the Defendant’s agent’s grounds of appeal.
(1) As to the First Instance 1.2, the following is found in the instant case. In other words, since the Plaintiff only won as the purport of the claim at the first instance court, and won was won in full, the Plaintiff did not appeal, and the Plaintiff appealed only to the Defendant, while the appellate court appealed, and the Plaintiff has extended or amended the purport of the claim (the Plaintiff stated to the purport of correcting the purport of the claim) and claimed money of KRW 3,255,860. In such a case, an application for change of the purport of the claim made by the said Plaintiff shall be deemed to have extended the claim and filed an incidental appeal to the extent that it becomes disadvantageous to the Defendant. Accordingly, even if the lower court accepted the claim by the extended portion of the claim at the lower court, it cannot be said that the lower court erred by misapprehending the principle of prohibition of disadvantageous change for the Defendant (Article 379 of the Civil Procedure Act) and, thus, it cannot be said that the Plaintiff’s appellate court’s amendment of the purport of the claim should be deemed to have been justified, without any limitation.
(2) Regarding the third ground, according to the appraisal statement prepared by the non-party who is admitted as evidence by the court below, it is not possible to see the fact that there is a building on this site in light of the fact that there is a building on this site.
In light of such circumstances, the above appraisal can not be employed on the premise of the appraised quantity without consideration, and on the premise of the development of the theory. Accordingly, the judgment of the court below cannot be said to have a ground for illegality of the failure to exercise the right of explanation and the omission of judgment due to lack of the right of explanation.
Therefore, this appeal is dismissed as it is without merit, and the costs of appeal are assessed against the losing party.
This decision is consistent with the opinions of the involved judges.
The judge of the Supreme Court is Hong Dong-dong (Presiding Judge) and Dong-dong (Presiding Justice)