Whether the main appeal may be withdrawn even after the remanding of the case, regardless of whether an incidental appeal is filed (affirmative)

[1] Article 393(1) of the Civil Procedure Act

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Park Jong-soo et al., Counsel for plaintiff-appellant)

The Compact Co., Ltd. (Law Firm Spare, Attorneys Park Woo-dong et al., Counsel for the plaintiff-appellant)

Korea Bank (Before its change: Korea Light Bank) (Law Firm Pule, Attorneys Jeong-pop et al., Counsel for the plaintiff-appellant)

Supreme Court Decision 2002Da40432 Delivered on July 22, 2003

Seoul High Court Decision 2003Na53109 delivered on November 26, 2003

The appeal is dismissed. The costs of appeal are assessed against the defendant.

An appeal may be withdrawn before a final judgment has been rendered at the appellate court (Article 393(1) of the Civil Procedure Act), and once a final judgment at the appellate court has been rendered, in cases where the final judgment has been reversed and the case has been remanded to the appellate court again, the first final judgment shall lose its effect and return to the same state as the final judgment did not exist, and thus, the appellant may withdraw the appeal regardless of whether the appellant has filed an incidental appeal until a new final judgment has been rendered. Accordingly, even if the appellant loses his/her interest in the incidental appeal, such interest shall be deemed mutually beneficial to the other party’s appeal, and thus, it shall not be inevitable because the withdrawal of the principal appeal becomes extinct, even if the incidental appeal has already been filed (see Supreme Court Decision 94Da51543, Mar. 10, 1995).

According to the records, as to the judgment of the court of first instance which partially accepted the plaintiff's claim, the defendant filed an incidental appeal after the expiration of the period of appeal, and the judgment of the court below prior to the remanded all the plaintiff's appeal and the defendant's incidental appeal. The defendant appealed and the plaintiff filed an incidental appeal after the expiration of the period of appeal, and the judgment of remanding was reversed the part against the defendant in the judgment of the court below prior to the remanding. The judgment of the court below which dismissed the plaintiff's incidental appeal while the plaintiff dismissed the plaintiff's appeal. After that, the plaintiff withdraws the appeal on August 22, 2003, which was pending in the court below after the return of the case, and the court below determined that the withdrawal of the plaintiff's appeal is valid, and declared that the lawsuit of this case was terminated by the withdrawal of the plaintiff's appeal. This decision of the court below is just in accordance

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Yoon Jae-chul (Presiding Justice)