[이혼등][공2002.2.1.(147),291]
[1] Whether a document stating an assertion that no statement was made in the pleading can be used as a data for the determination of the relevant case (negative)
[2] The case holding that even though the appellant submitted a written extension of the purport of appeal at the appellate court, the appellate court shall not be deemed to be the materials to determine the appeal, if the appellate court did not state it or state it in the pleading
[1] In light of the principle of oral pleading under the Civil Procedure Act, even if a party to a lawsuit stated his/her assertion in writing and submitted it to the court, it shall not be deemed as a reference material for determination of the relevant case, unless it is stated
[2] The case holding that even though the appellant submitted a written extension of the purport of appeal at the appellate court, the appellate court shall not be deemed to be the materials to determine if the document was not stated in the pleading or the statement was not made
[1] Articles 124 and 245 of the Civil Procedure Act / [2] Articles 124 and 245 of the Civil Procedure Act
[1] Supreme Court Decision 4290Hun-7 decided May 2, 1957 (Public-1, 133(1)); Supreme Court Decision 4293Hun-Ma96 decided September 15, 196 (Public-1, 133(2)); Supreme Court Decision 80Nu391 decided June 9, 1981 (Gong1981, 14060)
Plaintiff (Counterclaim Defendant)
Defendant-Counterclaim Plaintiff (Attorney Cho Jae-soo et al., Counsel for the defendant-Counterclaim plaintiff-appellant)
Principal 1 et al.
Daejeon High Court Decision 200Reu283, 290 delivered on September 7, 200
The appeal is dismissed. The costs of appeal are assessed against the plaintiff (Counterclaim defendant).
1. In light of the principle of oral pleading under the Civil Procedure Act, even if a party to a lawsuit stated his/her own assertion in writing and submitted it to the court, it cannot be deemed as the judgment data of the case (see Supreme Court Decision 80Nu391, Jun. 9, 1981). Even if the plaintiff (hereinafter referred to as "the counter-party") submitted a written extension of the purport of appeal to the court below on February 23, 2001, the plaintiff submitted it to the court below on February 23, 2001 (the document is not bound with the records), and if the plaintiff did not state it in the pleading or the document is deemed to be a statement, the court below cannot be deemed as the judgment data. Further, in this case where it clearly states that the plaintiff did not object to the designation of the rearer among the judgment of the court of first instance by the petition of appeal, even if the plaintiff stated his/her intention to have his/her child appear in the preparatory document stated in the court of first instance, if the court did not have an independent opinion on the plaintiff's part of appeal.
It cannot be said that the court below's failure to make a decision pursuant to the expansion of the purport of an appeal that was not stated in the oral argument does not constitute an error of law, and it is not erroneous in failing to explain to the plaintiff whether there was an objection against the designation of the guardian or not. The ground of appeal as to this point is not acceptable.
2. Examining the records and evidence, we affirm the judgment below's finding of the facts of the causes of divorce of this case as legitimate, and there is no illegality such as misconception of facts or incomplete hearing due to the violation of the rules of evidence.
3. Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Kim Ji-dam (Presiding Justice)