[2] Where a written waiver of right to appeal is submitted to the first instance court that has the record of trial after filing an appeal, the time when the waiver of right to appeal comes into effect

[3] Whether the first instance judgment becomes final and conclusive even if the period of appeal of the other party does not expire in cases where the party who lost the entire right to appeal has waived the right to appeal (affirmative)

[4] The case affirming the order of the presiding judge of the first instance court who rejected the above petition of appeal on the ground that the said petition of appeal was submitted beyond the period during which an appeal can be lodged, in case where the supplementary intervenor who lost the whole in the first instance court filed an appeal against the judgment of the first instance in the qualification of the supplementary intervenor, and the relevant party submitted to the first instance court a letter of withdrawal of appeal filed by the supplementary intervenor along with the letter of waiver of appeal, and filed a petition of appeal against the judgment of the first instance court along with the non-party

[2] Article 395(1) of the Civil Procedure Act provides that "The waiver of the right to appeal shall be made in writing to the first instance court prior to filing an appeal, and to the court keeping the record of trial after filing an appeal, shall be made in writing." In light of the text and purport of the provision, in case where the record of trial is submitted to the first instance court after filing an appeal while the record of trial is in the first instance court, the waiver of the right to appeal shall take effect immediately after submitting the written waiver of the right to appeal to the first instance court.

[3] Where there is no benefit in the appeal due to the other party's winning in full, only the losing party who has the right to appeal shall waive the appeal, even if the other party's appeal period has not expired, the judgment of the first instance shall be finalized.

[4] The case affirming the order of the presiding judge of the first instance court who rejected the above petition of appeal on the ground that the said petition of appeal was submitted beyond the period allowed for filing an appeal, in case where the supplementary intervenor who lost the whole judgment in the first instance filed an appeal against the judgment of the first instance as an assistant intervenor, and the relevant party submitted to the first instance court a letter of withdrawal of appeal filed by the supplementary intervenor along with the letter of waiver of appeal, and filed a petition of appeal against the judgment of the first instance, along with the Nonparty, along with the Nonparty

According to the records, Taelim Construction Co., Ltd., Hanyang Industrial Development, Hanyang Co., Ltd. (hereinafter referred to as "re-appellants") filed a lawsuit against Mapo-si to confirm the status of successful bidders at the first instance court No. 2004Gahap1894, and Hanyang participated in the lawsuit for Posi-si, and the first instance court rendered a favorable judgment on June 10, 2005 to the Re-Appellants on June 13, 2005. The original judgment is affirmed on June 13, 2005, the Re-Appellants' representative on June 16, 2005, the second instance court filed an application to dismiss the above appeal with the first instance court as an independent appellant on June 13, 2005, and the second instance court filed an application to dismiss the appeal with the first instance court on June 13, 2005 as an independent appellant on June 13, 2005.

2. The judgment of the court below

The court below granted the right to examine the petition of appeal to the presiding judge of the court of first instance and the appellate court. The purport of the Civil Procedure Act is to promote the economy of the lawsuit by terminating the lawsuit in the form of a simple presiding judge's order, rather than in cases where there is an obvious defect in matters to be stated in the petition of appeal or not attached with a prescribed recognition, and where it is evident that an appeal has been filed with the lapse of the period of appeal. Thus, in light of the purport of the above system, the defect in the petition of appeal as the ground for rejection should be strictly interpreted, and therefore, "it is obvious that the period of appeal has elapsed" as provided in Article 399 (2) of the Civil Procedure Act is clearly limited to cases where the period of appeal under Article 396 of the same Act has expired or it is obvious that the period of appeal cannot be included in cases where the right to appeal was extinguished for any reason other than the expiration of the period of appeal, which is stipulated in Article 97 (2) of the Civil Procedure Act, and thus, it cannot be included in the previous period of appeal by the plaintiff 2 and the independent party to intervene (see Article 97 (2).7).

3. The judgment of this Court

However, the above decision of the court below is hard to accept.

A. According to Article 399(2) of the Civil Procedure Act, the term "when it is obvious that the period of appeal may be exceeded" provides that the presiding judge of the original instance shall dismiss the petition of appeal by order. In light of the purport of the provision, there is no reason to see otherwise, even if it is evident that the petition of appeal was submitted after the judgment of the first instance became final and conclusive due to the waiver of the right to appeal, etc., and therefore, even in this case

B. Article 395(1) of the Civil Procedure Act provides that "The waiver of the right to appeal shall be made in writing to the first instance court prior to filing an appeal, and to the court having the record of trial after filing an appeal, shall be made in writing." In light of the language and purport of the provision, in a case where a written waiver of the right to appeal is submitted to the first instance court after filing an appeal and the record of trial is in the first instance court while the record of trial is in the first instance court, it shall be deemed that the effect of waiver of the right to appeal takes place immediately after submitting the written waiver of the right to appeal to the first instance court (amended by Act No. 6626 of Jan. 26, 202)." In Article 365(1) of the former Civil Procedure Act, "The waiver of the right to appeal shall take effect in writing to the first instance court before filing an appeal and to the appellate court after filing an appeal." In this regard, even if the written waiver of the right to appeal after filing an appeal is bound to the record, if it comes into existence at the record, the effect of waiver of the right to appeal becomes effective.

According to the records, it is recognized that the Pohang-si received the waiver of the right to appeal and the withdrawal of the right to appeal from the Pohang-gu District Court Branch of the first instance court which is the first instance court which kept the records of proceedings on June 24, 2005 after the appeal of Hanyang, the supplementary intervenor, was filed. Thus, the effect of the waiver of the right to appeal from the Pohang-si District Court shall be deemed to have occurred simultaneously with the receipt of the waiver of the right to appeal. At the same time

C. Meanwhile, if the other party does not have any interest in the appeal due to the whole winning of the appeal, the judgment of the court of first instance shall be interpreted to have become final and conclusive even if the other party's appeal period has not expired. Thus, in the case of this case where the re-appellant won the entire appeal in the first instance court, the judgment of the court of first instance as of June 24, 2005 where the waiver of the right to appeal at the time of Defendant Port was effective, as seen above, has become final and conclusive.

D. Therefore, the order of the presiding judge of the first instance court who dismissed the petition of appeal by the appellant is justifiable. However, the court below erred by misapprehending the legal principles as to the order to dismiss the petition of appeal, which affected the judgment, and the judgment of the court below is not dismissed. The ground for reappealing this point has merit.

4. Conclusion

Therefore, the order of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Si-hwan (Presiding Justice)