Whether the other party is deemed to have consented to the other party's answer to the dismissal of a counterclaim in an action

According to the third statement of pleading in the trial of the court, it can be recognized that the plaintiff's agent made the answer to the counterclaim, which constitutes a case where the defendant's counterclaim is groundless and the defendant's counterclaim is rejected, and it is a case where the defendant's counterclaim is presented as to the merits of the counterclaim, and thus, it is deemed that the defendant's consent to the counterclaim is given.

Article 382 of the Civil Procedure Act

Plaintiff

Defendant

Seoul Central District Court (70 Ghana2779) in the first instance trial

The defendant's appeal is dismissed.

The counterclaim Defendant removed 7 to 36-7 to 32 of Yeongdeungpo-gu Seoul, Yeongdeungpo-gu, Seoul, about 11 to 6 to 5 to 11 to 5 to 5 to 5 to 5 to 7 to 11 to 5 to 5 to 1.

The portion of appeal regarding the principal lawsuit among the costs of lawsuit shall be borne by the defendant, and the part concerning the counterclaim shall be borne by the plaintiff (the counterclaim defendant).

A provisional execution may be effected only under paragraph (2).

As to the principal lawsuit, the Plaintiff (hereinafter the Plaintiff’s counterclaim) ordered the Plaintiff to order the Defendant-Counterclaim Plaintiff (hereinafter the Defendant-Counterclaim Plaintiff) to place an order.

The judgment that the costs of lawsuit shall be borne by the defendant and the provisional execution declaration was made, and the defendant declared a provisional execution as to the counterclaim to the party members.

The defendant shall revoke the original judgment.

The plaintiff's claim on the main claim is dismissed.

It is called that the costs of lawsuit shall be borne by the plaintiff.

1. First, we examine the Plaintiff’s main claim.

In light of the following facts: (a) No. 1 copy of the register of the non-party 1 and No. 5, (b) the non-party 2, the non-party 1 and the non-party 2, who were admitted to be established by the testimony of the non-party 1; (c) the non-party 2, the non-party 1 and the non-party 2, each of the testimony of the court below and the results of the verification two times for the non-party 1 and the non-party 2, the non-party 1 and the non-party 2 were to newly construct the non-party 2's original building on July 1967 (hereinafter referred to as this building) and to the non-party 2, the non-party 1 and the non-party 3 were to have the non-party 1 and the non-party 2 were to have the non-party 1 and the non-party 2 were to have the non-party 1 and the non-party 1 were to have the non-party 2's original building and its original building.

As to the plaintiff's assertion that the building of this case is owned by the plaintiff, and the defendant illegally occupies it, the defendant purchased the building of this case from the non-party 2 and acquired the ownership of this case. Thus, as acknowledged earlier, the defendant cannot respond to this claim. Thus, the building of this case is presumed to be owned by the plaintiff, barring special circumstances, and the fact that the defendant occupies the building of this case is recognized above. According to Article 186 of the Civil Code, it is clear that the defendant purchased the building of this case from the non-party 2, but it is recognized that the defendant did not complete the registration of ownership transfer under the name of the defendant, and therefore the defendant cannot be deemed to have acquired the ownership of the building of this case.

In this case, the defendant is obligated to order the plaintiff to present this building unless the defendant asserts the right to possess the building.

However, the defendant and the non-party 3, his father, conspired with the non-party 2 and the non-party 3 to register the ownership transfer under the name of the non-party 3 as to the building in question and again completed the registration of ownership transfer by pretending to sell and purchase it again, so the plaintiff's assertion is groundless, since the plaintiff's assertion is not reasonable. Thus, as seen earlier, the non-party 2 and the non-party 3 did the registration of ownership transfer under the name of the non-party 3, and completed the registration of ownership transfer under the name of the plaintiff and again completed the registration of ownership transfer under the name of the non-party 3, even though they were found to be the above facts, it cannot be concluded that the registration of ownership transfer under the name of the plaintiff concerning the building was invalid by the false indication (i.e., the fact that the plaintiff was the non-party 3's registration of ownership transfer under the name of the non-party 3 as to the building in question, and there is no reason to reject the defendant's objection.

In this case, the defendant is obligated to order the plaintiff to present this building.

2. Next, we examine the defendant's counterclaims.

(1) First, despite the consent of the other party, the plaintiff's counterclaim claim in the appellate trial is illegal without the consent of the other party, so the defendant's counterclaim is dismissed in the appellate trial without the consent of the plaintiff. Thus, according to Article 382 (2) of the Civil Procedure Act, if the other party makes a pleading on the merits of the counterclaim without any objection, it shall be deemed that the other party has consented to the institution of the counterclaim. According to the Article 382 (2) of the Civil Procedure Act, the plaintiff's representative stated the counterclaim as stated in the claim and the cause of the counterclaim. Thus, it can be recognized that the plaintiff's representative made a reply to the purport that the plaintiff rejected the counterclaim because the plaintiff's counterclaim claim is groundless, and it shall be deemed that the plaintiff made a pleading on the merits of the counterclaim, and therefore, it shall be deemed that the plaintiff consented to the plaintiff's counterclaim claim in accordance with the purport of the provision of the above Act.

If so, the above main defense of the plaintiff is without merit, it shall be rejected.

(2) Therefore, as seen earlier, the site of the disposition is owned by the defendant, and the building site of the plaintiff's main building is constructed on the above site. Therefore, in this case, the plaintiff has a duty to remove the main building owned by the defendant and deliver it to the defendant, because there is no assertion as to the title to occupy the above site.

3. Therefore, since the plaintiff's counterclaim and the defendant's counterclaim are all reasonable, each of them will be cited. Accordingly, the original judgment as to the plaintiff's counterclaim is just, and the defendant's appeal as to the plaintiff's main lawsuit is without merit. Thus, the defendant's counterclaim is dismissed. Since the defendant's counterclaim is reasonable, the part of the appeal as to the main lawsuit is assessed against the plaintiff as the losing party, and the part concerning the counterclaim is assessed against the plaintiff as the losing party. It is so decided as per Disposition.

Judges Jeong Tae-won (Presiding Judge)