[2] In a case where only a part of the co-litigants have filed an appeal in ordinary co-litigation, whether Appellee may file an appeal against other co-litigants than the co-litigants (negative)

1. As to Defendant 2’s ground of appeal

A. Although the parties file a claim in the form of selective co-litigation, if the claims against the co-litigants are not legally incompatible, it shall not be an selective co-litigation as stipulated in Article 70(1) of the Civil Procedure Act, but an ordinary co-litigation, etc. according to the original nature of the claim. Thus, if only part of the co-litigants are dissatisfied with the judgment on such co-litigation relation, it shall be transferred to the appellate trial, and the scope of the appellate trial authority shall be limited to that part as a matter of course.

In a case where a direct possessor or an indirect possessor of a certain thing exists, the obligation to return unjust enrichment due to possession and use thereof is an obligation having the same economic objective, and the obligation of one of the parties with respect to overlapping parts is extinguished due to repayment, etc. In such a case where an obligor who is in the relationship of quasi-joint and several liability is jointly and severally liable as a co-defendant, each claim against the co-defendant is not legally incompatible, and thus, the lawsuit cannot be deemed as preliminary or selective co-litigation within the original meaning stipulated in Article 70(1) of the Civil Procedure Act. Therefore, Article 67 of the Civil Procedure Act as to indispensable co-litigation does not apply mutatis mutandis, and thus, the effect of blocking the confirmation of an appeal has only a relation between the appellant and the other co-litigants (see Supreme Court Decision 2011Da76747, Sept. 27, 2012).

B. The structure of the instant lawsuit and the progress of the hearing, etc., known by the record, are as follows.

1) On May 31, 2016, the Plaintiff filed a lawsuit seeking the return of unjust enrichment by asserting that the Plaintiff owned the instant land owned by Defendant 1/2 by the said Defendant.

2) The Defendant 1 responded to the purport that the instant land is used as a parking lot in a restaurant operated by Defendant 2.

3) Accordingly, the Plaintiff filed a lawsuit against Defendant 2 seeking restitution of unjust enrichment, and the first instance court decided to consolidate the two cases to hear.

4) The Plaintiff asserted that Defendant 1 leased the land of this case to Defendant 2 while leasing the adjacent land and the building thereon, and that Defendant 2 used the land of this case as a parking lot, and that Defendant 1 claimed a return of unjust enrichment due to the possession of the land of this case against Defendant 1 or Defendant 2.

5) The first instance court dismissed the claim against Defendant 2, while accepting the claim against Defendant 1, the first instance court appealed only Defendant 10,00, and the Plaintiff and Defendant 2 did not appeal.

6) The lower court: (a) deemed that the instant lawsuit was co-litigation by selective consolidation, and the part as to Defendant 2 was also considered to have been brought to the appellate court; and (b) subsequently revoked the first instance judgment; (c) partly accepted the claim against Defendant 2; and (d) dismissed the claim against Defendant 1. The Defendant 2 appealed.

C. In light of the above legal principles, even in cases where the plaintiff's assertion itself is based on the plaintiff's assertion, the existence of the defendants' obligations should be separately determined, and the legal relationship between the parties is nothing more than the joint liability of the direct occupant and the indirect occupant in the quasi-joint and several liability relationship. Thus, the claim against any co-litigants and the claim against other co-litigants in the instant case does not constitute a case where the claim against any co-litigants cannot be legally incompatible. Therefore, the defendants do not have a relation of selective co-litigation in the true meaning applied mutatis mutandis under Article 67 of the Civil Procedure Act pursuant to Article 70 (1) of the Civil Procedure Act. Thus, the validity of the blocking of the final appeal

D. Thus, as long as only Defendant 1 filed an appeal against the judgment of the first instance, only the claim against Defendant 1 shall be subject to the judgment of the appellate court, and the part against Defendant 2 shall be deemed to have been separated and finalized. Nevertheless, the lower court deemed that the claim against Defendant 2, which was separated and finalized, has also been brought to the appellate court. In so determining, the lower court erred by misapprehending the legal doctrine on the scope of the appellate court’s trial due to co-litigation and appeal, and by misapprehending the legal doctrine on the scope, etc. of the appellate court’s judgment, it erred by misapprehending Article 3 subparag. 2 of the Trial of Small Claims Act, thereby affecting the conclusion of the judgment

2. As to the plaintiff's incidental appeal

In ordinary co-litigation, when only a part of the co-litigants have filed an appeal, Appellee may not file an appeal against the other co-litigants other than the appellant or against the other party (see Supreme Court Decision 94Da40734 delivered on December 23, 1994).

According to the records, in this case which constitutes ordinary co-litigation, even though only Defendant 2 among the defendants who are co-litigants filed an appeal, the plaintiff is filing an appeal against Defendant 1, not the appellant after the expiration of the period for filing the appeal. Thus, the plaintiff's incidental appeal is unlawful.

3. Conclusion

Therefore, since the part of the judgment of the court below against Defendant 2 is reversed and this part of the judgment below is sufficient to be directly tried by this court, it is decided to see that this part of the lawsuit as to this part is terminated by the pronouncement of the judgment of the court of first instance on July 12, 2018, and it is dismissed. The incidental expenses are to be borne by the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Seon-soo (Presiding Justice)