[1] In case where a new claim is added in the appellate court, the method of displaying the order when the appellate court rejected all the existing claim and the additional claim

[2] Whether an appeal against the part of the claim, which was omitted from the judgment, is lawful (negative)

[3] The case holding that the appeal on the additional claim is unlawful in a case where the judgment on the additional claim was omitted due to the failure to make any judgment only on the grounds of the judgment, and the judgment on the additional claim was omitted

[1] Articles 212 and 414 of the Civil Procedure Act / [2] Article 212 of the Civil Procedure Act / [3] Article 212 of the Civil Procedure Act

[2] Supreme Court Decision 2004Da24083 decided Aug. 30, 2004 (Gong2004Ha, 1600)

Plaintiff

Defendant 1 and six others (Attorney Go Jong-hee, Counsel for the defendant-appellant)

Busan District Court Decision 2005Na3714 Decided April 20, 2006

The plaintiff's appeal as to the claim for cancellation of ownership transfer registration as of September 1, 2004 under the name of defendant 2 and the claim for cancellation of ownership transfer registration as of November 23, 2004 under the name of defendant 4 is dismissed. The remaining appeal by the plaintiff is dismissed. The costs of appeal are assessed against the plaintiff.

1. On its own authority, the part of the claim for cancellation of the ownership transfer registration (hereinafter “registration in Defendant 2”) on September 1, 2004 by Defendant 2, and the part of the claim for cancellation of the ownership transfer registration (hereinafter “registration in Defendant 4”) on November 23, 2004 by Defendant 4, are deemed lawful.

In a case where a new claim is added at the appellate trial, the appellate court shall judge the additional claim as the first instance court in substance, so the first instance court ruled that "the plaintiff's claim is dismissed" while rejecting the existing claim, and where the appellate court refuses all the existing claim and the additional claim in the appellate trial, it shall simply indicate that "the plaintiff's claim is dismissed" shall not be indicated in the text, and as to the additional claim in the appellate trial, "the plaintiff's claim shall be dismissed" shall be indicated in the text. On the other hand, in the judgment, in order to clarify the judgment of the court, the decision shall be made by the statement in the text, unless there are any special circumstances, even though the court states that the claim is not reasonable, it shall be deemed that the judgment is omitted, and if there is any omission in the judgment, the part of the lawsuit shall be deemed to be still pending in the appellate court, and thus, it is unlawful as the appeal in this part is unlawful (see, e.g., Supreme Court Decision 2004Da24083, Aug. 30, 30, 2004).

According to the records, the plaintiff filed a claim against the defendants, the inheritor of the non-party, for the cancellation of the registration under the name of the non-party on June 16, 1970 concerning the forest of this case (hereinafter "registration under the non-party's name"), and the court of first instance rejected the claim. The plaintiff appealed against the plaintiff, and added the claim for cancellation of the registration under the name of the defendant 2 and the claim for cancellation of the registration under the name of the non-party on September 14, 2005, in the purport of appeal and the purport of appeal as of September 14, 2005, and in the application for correction of the purport of appeal as of September 14, 2005, and the purport of appeal as of September 14, 2005, and the claim for cancellation of the registration under the name of the non-party on September 2 and 4. However, the court below explained that all of the claims for cancellation of the registration under the name of the non-party on the ground of the judgment, and without merit.

If there are some circumstances, the plaintiff added the claims for cancellation of registration in the name of the non-party, which was the previous claims through the purport of the appeal and the purport of the appeal as of September 5, 2005, and the application for correction of the purport of the appeal as of September 14, 2005, and the application for correction of the purport and purport of the appeal as of September 14, 2005, and thereby making an additional change in the lawsuit. In such a case, the court below should have judged the additional claims as the first instance court in substance, but only stated them in the reasoning of the judgment, and failed to make any judgment in the order, and thereby omitted the judgment as to the additional claims, and thus, this part of the claims are still pending in the court below. Therefore, the plaintiff's appeal as to this part is not dismissed as an unlawful appeal without the subject of appeal.

2. We examine the grounds of appeal as to the Nonparty’s claim for cancellation of registration under the Nonparty’s name (to the extent of supplement in case of an amendment, etc. submitted after expiration

The court below rejected the plaintiff's claim against the defendants seeking cancellation of the registration in the name of the non-party on the ground that the registration in the non-party's name completed under the former Act on Special Measures for the Registration, etc. of Transfer of Ownership of Forest Land (Act No. 2111, May 21, 1969; hereinafter "Special Measures Act") is presumed to be a registration in accordance with the substantive legal relationship, and that the certificate of guarantee or confirmation under the Special Measures Act is false or forged, or that it is not a legitimate registration due to other reasons. The court below rejected the plaintiff's claim against the defendants for cancellation of the registration in the non-party's name on the ground that it is not sufficient to prove that the legal presumption of the registration in the non-party's name was reversed even with all evidence submitted by the plaintiff. The above judgment of the court below is just and there is no error of law

3. Therefore, the Plaintiff’s appeal as to the part concerning Defendant 2’s claim for cancellation of registration and the part concerning Defendant 4’s claim for cancellation of registration is dismissed. The Plaintiff’s appeal as to the part concerning the Nonparty’s claim for cancellation of registration is dismissed. The costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent

Justices Yang Sung-tae (Presiding Justice)