[2] In a case where a lawsuit on the increase of compensation is filed with regard to land expropriated for public works, clearly stating that part of a claim is within the period for filing a lawsuit under Article 85(1) of the Act on the Acquisition of Land, etc. for Public Works and the Compensation therefor, even after the period for filing a lawsuit expires, a separate lawsuit seeking compensation for the remainder of the part until the conclusion of the pleadings at a fact-finding court does not need to be recognized, and there is an error of law by misunderstanding legal principles as to partial claims and the interest in appeal

[3] Where the plaintiff appealed against the judgment of the court of first instance which partially admitted the plaintiff's claim, but the defendant did not appeal or incidental appeal, and the appellate court rendered a modified judgment, whether the defendant can file an appeal against the part of the judgment of first instance concerning the plaintiff's winning judgment (negative)

1. As to the Defendant’s ground of appeal

A. As to the part of the judgment of the court of first instance which cited the plaintiffs' claims in excess of the winning part of the judgment

Since an appeal is seeking change in favor of himself/herself in relation to a judgment unfavorable to himself/herself, it is a principle that an appeal shall not be permitted against the judgment in full winning the judgment, and whether the judgment is disadvantageous to the appellant shall be determined based on the text of the judgment, in principle, on the basis of the text of the judgment. However, in cases where a lawsuit seeking performance of a claim for performance of a divided claim is filed and it is not clearly stated that the remaining part is reserved and only a part is claimed, the res judicata effect of the final judgment shall extend to the remaining part, and thus, it cannot be re-claimed as a separate lawsuit. Thus, if an appeal is not allowed to extend the remaining part of a claim, the obligee who has won the entire claim shall be at a disadvantage of losing the opportunity to recover the remaining part. Accordingly, in such cases, the benefit of appeal in order to expand the remaining part of the judgment in full winning the judgment shall be determined separately (see Supreme Court Decision 96Da1227

According to the court of first instance and the records, since the plaintiffs' request for increase in compensation for the land of this case to which they were admitted and the complaint of this case submitted, "the compensation determined by this ruling shall not be deemed to have been appraised at an appropriate price," it stated to the purport that "the plaintiffs shall seek payment of 10 million won per head of the plaintiff and damages for delay thereof" as part of the complaint of this case. The plaintiffs do not expand the purport of the complaint of this case until the closing of argument of the court of first instance, and the court of first instance has no expansion of the plaintiffs' claim of compensation until the date of the above complaint of this case. Accordingly, it is difficult to find that the defendant's request of this case to the plaintiffs for compensation for the difference between 237,572,90 won and the compensation amount stipulated by this ruling has a duty of 1/6,595,483 won and damages for delay to the plaintiffs' claim of this case, and it is hard to see that the plaintiffs' right of appeal of this case to the plaintiffs as part of the plaintiffs' complaint of this case is unlawful.

However, it is difficult to accept the above decision of the court below that rejected the Defendant’s defense of safety.

First of all, in the case of reserving the remainder and claiming only a part of the claim, it is not necessary to specify the total amount of the claim as a way to specify that it is a claim for partial payment, and to specify that it is a claim for partial payment. It is sufficient to indicate that the scope of the amount of the claim for partial payment is a part of the total amount of the claim by indicating the scope of the examination to the extent that it is possible to specify the scope of the examination as a part of the total amount of the claim (see Supreme Court Decision 86Meu536, Dec. 23, 1986, etc.) by distinguishing the scope of the amount of the claim for partial payment from the remaining claim (see Supreme Court Decision 86Meu536, Dec. 23, 1986, etc.). Accordingly, examining the contents of the complaint in this case, although the whole amount of the claim for partial payment was not specified, it is sufficient to view that the plaintiffs' claim for partial payment (10 million won per plaintiff 1) is a claim for partial payment.

On the other hand, in cases where a lawsuit on the increase or decrease of compensation is filed by clarifying that part of a claim is within the period for filing a lawsuit under Article 85(1) of the Public Works Act, the plaintiff can not only expand the purport of the claim until the conclusion of fact-finding proceedings, but also seek a separate claim corresponding to the expanded part after the lapse of the period for filing a lawsuit.

In accordance with the above legal principle, the plaintiffs who filed the lawsuit in this case regarding the increase in compensation, clearly stating that they are part of claims within the period for filing the lawsuit, may file a separate lawsuit seeking compensation for the remainder of the compensation until the conclusion of pleadings at the fact-finding court, even after the period for filing the lawsuit expires, and therefore, it is not necessary to recognize the benefits of appeal against the plaintiffs for the expansion of

Nevertheless, the court below held that the plaintiffs' claim in the first instance court constitutes an implied partial claim, and even if it is deemed that it constitutes an explicit claim, it is impossible for the plaintiffs to file a separate lawsuit for the remaining claim because the period for filing a lawsuit already expires, so it is necessary to recognize the interests of appeal against the plaintiffs. Thus, it is erroneous in the misapprehension of legal principles as to partial claim and the interests of appeal, thereby adversely affecting the conclusion of the judgment. The ground of appeal assigning this error is with merit.

B. As to the winning part of the judgment of the court of first instance

In a case where the plaintiff appealed against the judgment of the court of first instance which partly accepted the plaintiff's claim, but the defendant did not appeal or incidental appeal, the part in favor of the plaintiff in the judgment of first instance was transferred to the appellate court due to the plaintiff's appeal, but did not belong to the appellate court. Therefore, if the appellate court partly accepted the plaintiff's appeal and partly revoked the part in favor of the plaintiff in the judgment of first instance and accepted the plaintiff's claim against the part in favor of the plaintiff in the judgment of first instance, it is limited to the part in the judgment of first instance, and the part in favor of the plaintiff in the judgment of first instance is not subject to the defendant's appeal since the appellate court rendered a judgment against the part in favor of the plaintiff in the judgment of first instance. The change in the judgment in the appellate court is identical to the judgment of partial revocation which dismissed the appeal with respect to the part in the judgment of first instance where the appeal is well-founded, and it is merely in accordance with the convenience request to easily understand the contents of the order. Thus, the defendant cannot file an appeal from the judgment of first instance.

In light of the above legal principles, as long as the defendant did not appeal against the judgment of the court of first instance against the whole part of the judgment below, the appeal filed by the plaintiffs as to the winning part of the judgment of first instance against the judgment of the court of first instance shall be deemed unlawful as an appeal against the part which cannot be the object of appeal.

2. As to the grounds of incidental appeal by the plaintiffs

Before determining the grounds of incidental appeal by the plaintiffs, the time limit to file an appeal against the plaintiff ex officio shall be deemed to be until the expiration of the period for submitting the appellate brief corresponding to the time of closing argument in the appellate court (see, e.g., Supreme Court Decision 2006Da10439, Apr. 12, 2007). The records reveal that the plaintiffs filed an appeal against the defendant, who was the appellant, on July 27, 2010, on which the notice of receipt of the records of the appeal was served on the appellant, and therefore, the incidental appeal by the plaintiffs is unlawful, and thus the defects cannot be corrected.

3. Conclusion

Therefore, among the judgment of the court of first instance, the part accepting the plaintiffs' claims in excess of the winning part of the judgment of the court of first instance is reversed, and that part of the case is remanded to the court below for a new trial and determination. All of the defendant's remaining appeals and the plaintiffs' supplemental appeals are dismissed, and the incidental expenses are borne by the plaintiffs. It is so decided as per Disposition by the assent of all participating

Justices Park Si-hwan (Presiding Justice)