[1] In case where a new claim was added to the appellate court for the first time, the method of indicating the order when the appellate court rejected all the existing claim and the new additional claim

[2] Whether a claim constitutes omission in a trial without a statement in the main text of the judgment, although it states that the claim is groundless (affirmative)

[3] Whether an appeal against the part of the claim, which was omitted from the judgment, is lawful (negative)

[1] Where a new claim is added to the appellate court for the first time, the appellate court should judge the additional claim as the first instance court in substance, so the first instance court ruled that "the plaintiff's claim is dismissed" while rejecting the existing claim, and where the appellate court rejects all the claims added in the existing appellate court for the first time, "the appeal is dismissed" is not merely just to indicate the order, but also to indicate the order that "the plaintiff's claim is dismissed" as to the additional claim added in the appellate court.

[2] The judgment requires that the conclusion be entered in the text in order to clarify the court's decision, so whether there is any omission of judgment shall be determined by the entry in the text of the judgment, and even if the reasoning of the judgment states that the request is groundless, it shall be deemed that there is an omission of judgment, unless there is any special reason not to do so.

[3] In a case where there is a omission of judgment, the part of the lawsuit shall be deemed to be still pending in the original judgment, and thus, it shall not be a legitimate appeal, and the appeal on that part is unlawful.

[1] Articles 262, 408, and 414 of the Civil Procedure Act / [2] Articles 208 and 212 of the Civil Procedure Act / [3] Article 212 of the Civil Procedure Act

[1] Supreme Court Decision 73Da1796 decided May 28, 197 (Gong1974, 7927), Supreme Court Decision 96Da2549, 25456 decided Jun. 10, 197 (Gong1997Ha, 2125) / [2] Supreme Court Decision 69Da605 decided Jun. 24, 1969 (Gong1982, 221), Supreme Court Decision 80Ma118 decided Apr. 25, 1984 (Gong1984Ha, 1016) / [3] Supreme Court Decision 94Da5074 decided Feb. 9, 196 (Gong1984, 297Da3974 decided Oct. 39, 197)

Plaintiff (Attorney Kim Il-chul, Counsel for the plaintiff-appellant)

Defendant (Attorney Lee In-bok, Counsel for defendant-appellant)

Changwon District Court Decision 2002Na7859 delivered on April 22, 2004

The plaintiff's appeal against the claim for cancellation of ownership transfer registration is dismissed. The plaintiff's appeal against the removal of a building and the claim for transfer of land is dismissed. The costs of appeal are assessed against the

1. First, we examine whether the Plaintiff’s appeal as to the claim for cancellation of ownership transfer registration is legitimate.

Where a new claim is added to the appellate court for the first time, the appellate court shall judge the additional claim as the substance of the first instance court. Thus, the appellate court rejected the plaintiff's claim, and thus, "if the appellate court rejects all the existing claims and the additional claims in the appellate court, the appeal is dismissed" is not merely an indication of the order, but also an indication of the order of "the plaintiff's claim is dismissed" as to the additional claims in the appellate court. (See Supreme Court Decision 73Da1796 delivered on May 28, 197, Supreme Court Decision 96Da2549, 25456 delivered on June 10, 197, etc.). Meanwhile, the appellate court's decision should be stated in the order to clarify the court's decision, and thus, the appellate court's decision whether the omission of judgment has been made should be determined by the first instance court's decision, and it shall be deemed that the appeal is unlawful, unless there is any special reason in the order of the appellate court's decision, 97Da294989 delivered on June 198, 19, 29, 198.

기록에 의하면, 원고는 이 사건 청구로서 제1심에서의 측량감정 결과에 따라 "피고는 원고에게 이 사건 임야 중 제1심판결 별지도면 표시 1, 2, 3, 4, 5, 6, 22, 23, 24, 25, 26, 27, 28, 29, 30, 16, 17, 1의 각 점을 순차로 연결한 선내 부분 임야 108㎡ 지상에 건립된 스레트지붕 단층 건물 65㎡ 및 스라브지붕 단층 욕실 7㎡를 철거하고, 위 임야 108㎡를 인도하라."고 구하였으나, 제1심은 "원고의 청구를 기각한다."는 판결을 선고한 사실, 그러자 원고는 이러한 제1심판결에 불복하고 항소한 이후 2003. 6. 11.자 청구취지정정 및 청구원인보충신청서를 통하여 이 사건 청구를 "피고는 원고에게, ① 이 사건 임야 중 원심판결 별지도면 표시 3, 4, 17, 18, 21, 22, 23, 24, 25, 26, 27, 15, 16, 3의 각 점을 순차로 연결한 선내 ㈐부분 78㎡ 지상에 건립된 시멘트 블록조 슬레이트지붕 단층 주택 25㎡를 철거하고, 위 임야 78㎡를 인도하고, ② 이 사건 임야 중 142/4950 지분 중 67/4950 지분에 관하여 창원지방법원 마산등기소 1990. 5. 3. 접수 제15861호로 마친 소유권이전등기의 말소등기절차를 이행하라."는 것으로 변경하였는데, 위 건물철거 및 토지인도청구의 목적물 표시와 면적 등은 원심에서의 재측량감정 결과에 따른 것인 사실, 그런데 원심은 그 판결이유에서 위와 같이 변경된 이 사건 청구 전부에 관하여 이유 없다고 설시하면서도 주문에서는 "원고의 항소를 기각한다."고만 하였을 뿐 위 소유권이전등기말소청구 부분에 관하여는 아무런 판단을 하지 아니한 사실을 알 수 있다.

On the other hand, the plaintiff added the claim for cancellation of ownership transfer registration by correcting the description and size of the object at the time of the request for cancellation of the existing building and the request for cancellation of ownership transfer registration through the application for correction of the purport of the claim as of June 11, 2003 and supplementation of the cause of the claim. In such a case, the court below should have rendered a judgment as the first instance court on the claim for cancellation of ownership transfer registration, but it merely stated it in the reasoning of the judgment and did not make any judgment in the text. Thus, this part of the claim constitutes an omission of judgment on the claim for cancellation of ownership transfer registration and it is still a pending in the court below, and thus, it is not a legitimate appeal. Thus, the plaintiff's appeal on this part cannot be dismissed without examining the grounds of appeal.

2. We examine the grounds of appeal as to the removal of buildings and the request for delivery of land.

According to the reasoning of the judgment below, the court below found that the non-party 1 purchased approximately 30 square meters of the first forest of this case from the non-party 2 on April 4, 1978 with specific housing units and 495 square meters of the first forest of this case, and completed the registration of transfer of ownership with respect to 30/495 shares of the first forest of this case with 30 square meters of 1,636 square meters of the initial forest of this case with 1,636 square meters as Subdivision. The non-party 3 did not accept the judgment of the court below on May 12, 1979 as to the remaining 465 square meters (1,537 square meters) among the first forest of this case with the non-party 2 of this case, and the non-party 3 purchased the remaining part of the first forest of this case with the non-party 99 square meters of the first forest of this case with the non-party 2's consent to the non-party 2 of this case with 9465 square meters of this case.

3. Therefore, the Plaintiff’s appeal as to the claim for cancellation of ownership transfer registration is dismissed, and the Plaintiff’s appeal as to the removal of a building and the claim for transfer of land is dismissed. The costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent

Justices Park Jae- Jae (Presiding Justice)