Legal fiction of an incidental appeal

If only the defendant filed an appeal and the plaintiff expanded the purport of the claim in the appellate court, it is deemed that the incidental appeal has been filed to the extent of the extension.

Article 372 of the Civil Procedure Act

Supreme Court Decision 67Da1709 Decided September 19, 1967

[Judgment of the court below]

Attorney Song-tae, et al., Counsel for the defendant-appellant

Seoul High Court Decision 79Na1767 delivered on March 31, 1980

The part of the original judgment against the defendant under paragraph (2) of this Article exceeding 16,410,453 won established shall be reversed, and the case shall be remanded to the Seoul High Court.

(1) The grounds of appeal Nos. 1 and 3 by Defendant’s attorney are also examined.

Even in cases where only the defendant filed an appeal, it shall be deemed that there has been an incidental appeal if the other party extended the purport of the claim in the appellate trial (Supreme Court Decision 67Da1709 delivered on September 19, 1967). Thus, according to the expansion of the purport of this claim, it cannot be deemed that the appellate court has violated the principle of prohibition of disadvantageous alteration due to the increase of the cited amount in the appellate court more than the first instance court, and even according to the fact-finding in the appellate court, the degree of comparative negligence of the plaintiff may be newly determined differently from the first instance court. Therefore, it cannot be said that the lower court erred in the original judgment recognized differently from the degree of comparative negligence in the first instance court and the degree of comparative negligence.

All the arguments of the defendant's attorney are groundless.

(2) We examine the second ground for appeal.

According to the records, the plaintiff received KRW 1,216,821 as the first disability benefit due to the accident of this case in addition to receiving KRW 1,216,821 as the second degree of disability benefit, and received KRW 2,694,390 from October 30, 1979 at a time (record 194) for fact inquiry, and the plaintiff's attorney also has the person (refer to the expansion of the plaintiff's attorney's claim and supplementary cause of claim as of March 14, 1980). Although the defendant's attorney asserted the deduction (record 199), the court below did not deduct only the amount of the first degree of disability benefit and received only the amount of the first degree of disability benefit from the damages recognized, which resulted in double compensation for the remaining amount of KRW 2,694,390, the court below erred in the misapprehension of legal principles as to the calculation of profits and losses.

In this regard, the part of the original judgment, with the exception of the amount of KRW 16,410,453, which was determined by the defendant's failure to appeal, shall be reversed, and the case shall be remanded to the Seoul High Court which is the original judgment. It is so decided as per Disposition by the assent

Justices Dra-ro (Presiding Justice)