A. Whether the original party may withdraw the appeal filed by the supplementary intervenor (affirmative)

(b) Effect of a written waiver of appeal submitted to the first instance court after filing the appeal; and

A. The purport of Article 70(2) of the Civil Procedure Act is that, in a case where an intervenor’s procedural acts and an intervenor’s procedural acts conflict with each other, the intervenor’s intent takes precedence over the intervenor’s procedural acts. Thus, the intervenor may conduct an act in conflict with the intervenor’s procedural acts, and accordingly, the intervenor may waive or withdraw the appeal

B. In light of the provisions of Article 365(1) and (3) of the Civil Procedure Act, the waiver of the right to appeal after filing an appeal may always be made until the pronouncement of the judgment of the appellate court, unlike the case where the right to appeal is extinguished with the lapse of the period of appeal without filing an appeal. Even if the above written waiver of the right to appeal is submitted to the first instance court, it has the effect of waiver of the right to appeal when it arrives in the appellate court, and thus, the withdrawal of appeal has

A. Article 70 of the Civil Procedure Act

Supreme Court Decision 70Nu35 Delivered on July 28, 1970 delivered on August 19, 1952

[Judgment of the court below]

Korea

Defendant Intervenor and two supplementary intervenors et al., Counsel for the defendant-appellant after the removal of the intervenor

Seoul High Court Decision 83Na2248 delivered on February 7, 1984

The judgment of the court below is reversed.

This case is terminated on June 4, 1983.

The grounds of appeal No. 2 are examined.

The judgment of the court below, on its reasoning, is delivered to the defendant on May 19, 1983 by the court of first instance, and only the defendant joining the defendant filed an appeal against the judgment of the court of first instance, which is within the period of appeal, and it can be acknowledged that the defendant returned the written waiver of appeal to the court of first instance after the period of appeal expires to the court of first instance. Thus, the waiver of the right to appeal is a premise that the right to appeal has a right to appeal. Thus, the waiver of the right to appeal submitted by the above defendant after the period of appeal is not effective, and it cannot be deemed that the waiver of the right to appeal is merely a passive declaration of intention not to object to the judgment of the court of first instance, unlike the withdrawal of appeal. Thus, the appeal of this case is unlawful, the plaintiff's right to appeal is rejected.

However, Article 70 (2) of the Civil Procedure Act provides that the waiver of the right to appeal after filing an appeal has no effect when the intervenor's procedural acts conflict with the intervenor's procedural acts. The waiver of the right to appeal after filing an appeal can always be made until the pronouncement of the judgment of the appellate court, and the waiver of the right to appeal after filing an appeal may take precedence over the intervenor's procedural acts when both are in conflict with each other. Thus, the intervenor may waive or withdraw the appeal filed by the assisting intervenor. Accordingly, Article 365 (1) of the Civil Procedure Act provides that the waiver of the right to appeal after filing an appeal shall be made in writing to the appellate court before filing an appeal to the first instance court. Since Article 70 (3) of the Civil Procedure Act provides that the waiver of the right to appeal after filing an appeal can be made always until the pronouncement of the judgment of the appellate court without filing an appeal, and even if the above waiver of the right to appeal has been bound to the first instance court, the plaintiff's withdrawal of appeal after filing of the judgment of the appellate court of this case cannot be made final and conclusive by the records.

Therefore, without any need to decide on other grounds of appeal, the judgment of the court below is reversed, and since the lawsuit of this case has already been terminated, it is so decided as per Disposition by the assent of all participating judges.

Justices Lee Chang-chul (Presiding Justice)