[1] Where only the defendant appealed against the judgment of the court of first instance which dismissed the main claim and accepted only the conjunctive claim, the scope of the judgment of the court of first instance

[2] In a case where the appellate court rendered a judgment that rejected the appeal as to the main claim not subject to the trial, whether the appeal as to this part is legitimate (negative)

[3] The case affirming the judgment of the court below that it is difficult to view that the adoptive parent relationship has failed to the extent that it cannot be recovered due to the reason that the adoptive parent relationship is responsible for both

[1] In a case where the first instance court filed an appeal against only the defendant's decision that only dismissed the main claim and accepted only the conjunctive claim after the consolidated examination of the plaintiff's claim to nullify the adoption of the main claimant and the conjunctive claimant's dissolution and consolation money, the effect of the first instance court's appeal is naturally limited to the entirety of the case and the part concerning the main claim is also remanded to the appellate court. However, the scope of the appellate court's trial is limited to the legitimacy of the first instance court's judgment that accepted the conjunctive claim. Thus, unless there is no incidental appeal by the plaintiff, the main claim cannot be the subject of the judgment, and the subject of the appellate court's trial against

[2] Even though the appellate court rendered a judgment dismissing this part of the judgment as to the claim to nullify the adoption of the primary petitioner, which is not subject to the adjudication, the plaintiff's appeal against the plaintiff is not subject to the adjudication of the appellate court. Thus, the plaintiff's appeal as to this part is unlawful as there is no benefit of appeal, since it is not subject to the adjudication.

[3] The case affirming the judgment of the court below that it is difficult to view that the adoptive parent relationship was unable to recover as it was due to the reason that the adoptive parent relationship was mainly responsible for the two.

[1] Articles 385 (see current Article 415), 395 (see current Article 425), and 401 (see current Article 431) of the former Civil Procedure Act (amended by Act No. 6626 of Jan. 26, 2002) / [2] Articles 385 (see current Article 415), 395 (see current Article 425), and 401 (see current Article 431) of the former Civil Procedure Act) / [3] Articles 905 subparagraph 1, 5, and 907 of the former Civil Act (amended by Act No. 4199 of Jan. 13, 190)

[1] [2] Supreme Court Decision 2001Da8333 decided Apr. 26, 2002 / [1] Supreme Court Decision 94Da31624 decided Feb. 10, 1995 (Gong1995Sang, 1306) Supreme Court en banc Decision 98Da22253 decided Nov. 16, 200 (Gong2001Sang, 34), Supreme Court Decision 2001Da6213 decided Dec. 24, 2001 (Gong2002Sang, 348)

Plaintiff (Law Firm Nam, Attorneys Jeon Dong-jin et al., Counsel for the plaintiff-appellant)

Defendant (Attorney Kim Si-hwan, Counsel for defendant-appellant)

Seoul High Court Decision 2001Reu451 delivered on May 23, 2002

The plaintiff's appeal dismissed the part concerning the claim for nullification of adoption, and the dissolution of adoption and the claim for consolation money are dismissed. The costs of appeal are assessed against the plaintiff.

1. As to the ground of appeal on the claim to nullify adoption

According to the records, it is clear that the court of the first instance dismissed the primary claim, and only the defendant appealed from the judgment that accepted only the preliminary claim, at the end of the preliminary claim and the consolidated proceedings for nullification of adoption of the primary claimant in this case.

In such a case, the effect of the appeal by a lawsuit is naturally limited to the whole of the case and also to the appellate court. However, the scope of the appeal by the appellate court is limited to the legitimacy of the judgment of the court of first instance which accepted the conjunctive claim by the defendant. Thus, unless there is no incidental appeal by the plaintiff, the primary claim cannot be the subject of the adjudication, and the subject of the judgment by the court of final appeal is limited to the conjunctive claim (see Supreme Court Decision 94Da31624 delivered on February 10, 1995).

Nevertheless, even if the court below rendered a judgment dismissing this part of the judgment on the claim for nullity of adoption which is not subject to a trial, the plaintiff's appeal against the plaintiff is not subject to a trial by the court of final appeal. Thus, the plaintiff's appeal against this part is unlawful as it has no benefit of appeal (see Supreme Court Decision 2001Da8333, Apr. 26, 2002).

2. As to the ground of appeal on dissolution of adoptive relation and claim of consolation money

A. According to the reasoning of the lower judgment, the lower court, based on the employment evidence, recognized the following facts as to the developments leading up to the distribution of property of the first real estate, etc. of this case, the title trust, and the process leading up to the litigation

(1) From the beginning of the 1970s, the Defendant’s disposal of the real estate No. 1 and the real estate No. 2, 3, and 4 of this case to another person immediately after completing registration under the name of the Defendant with respect to the real estate No. 2, 3, and 4 of this case, or the successful bid by establishing a collective security right shall be deemed to fall under “when there is gross negligence with even though it is the cause for judicial dissolution under Article 905 subparag. 1 of the former Civil Act (amended by Act No. 4199 of Jan. 13, 1990),” or “where there is any other serious cause difficult to continue a adoptive relationship” under Article 905 subparag. 5 of the former Civil Act, the Plaintiff’s disposal of the real estate No. 2, 3, and 4 shall be deemed to fall under “where there is no other reason for the Defendant’s disposal of the real estate under the name of the heir, and there is no other reason for the Defendant’s disposal of the real estate more than 90 months after the Plaintiff’s disposal of the real estate.

(2) Afterwards, the Defendant filed a lawsuit against the heir, including the Plaintiff, etc., who is the title holder of the real estate No. 1 in the title trust, to file a claim for ownership transfer registration on the ground of termination of title trust, and obtained a favorable judgment by entering the heir’s address falsely, and completed the registration of ownership transfer under the name of the Defendant. Accordingly, there was a dispute between the Plaintiff, etc. and the heir including the Plaintiff, etc., and the Defendant over filing a constitutional complaint against the appeal and final appeal against the civil judgment, criminal complaint, and non-prosecution disposition. Meanwhile, even if the Plaintiff, etc. were to recover the ownership of the real estate No. 2, 3, and 4 of the instant case sold by the Defendant through the lawsuit from the third parties, and completed the registration of ownership modification by inheritance under the name of the original and the Defendant, the agreement was reached between the original and the Defendant et al. to independently own the portion equivalent to the share of the heir among the real estate No. 1 on Nov. 15, 1983.

In addition, the defendant filed a lawsuit claiming ownership transfer registration due to termination of title trust against the plaintiff et al., and the plaintiff et al. filed a final appeal against the plaintiff et al. against the plaintiff et al., and the plaintiff et al. appealeded against the defendant's defense against the defendant's complaint of these acts in fraud. Therefore, the defendant's legitimate exercise of rights seems to be the plaintiff's legitimate exercise of rights. Accordingly, the plaintiff's series of acts related to the civil litigation and criminal complaint against the plaintiff et al. in relation to the first real estate belongs to the defendant in accordance with the agreement with the heir, and the ownership of the heir et al. in the first real estate belongs to the plaintiff et al., and the plaintiff et al.'s heir et al. were found to have entered false addresses in the process of claiming his legitimate exercise of rights. It is also difficult to see that the conflict between the plaintiff et al. in the civil and criminal cases between the plaintiff and the defendant becomes difficult to continue their adoptive relations due to the defendant's fault.

B. The purport of the judgment of the court below is that it is difficult to view that the adoptive parent relationship has been broken down to the extent that the adoptive parent relationship cannot be recovered due to a cause attributable to the defendant, and considering the reasoning of the judgment below in light of the records, the fact-finding and judgment of the court below is just and acceptable, and there is no error of law by misunderstanding facts against the rules of evidence or by misapprehending the legal principles

All grounds of appeal pointing out this issue are rejected.

3. Therefore, the part of the Plaintiff’s appeal regarding the claim for nullification of adoption is dismissed, and the dissolution of adoption and the claim for consolation money are dismissed. 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-sik (Presiding Justice)