(영문) 서울고등법원 2018.12.20 2018나2028042

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(영문) 서울고등법원 2018.12.20 2018나2028042

매매대금반환 및 위약금

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1. The plaintiff's appeal against the defendant B and D is all dismissed.

2. The costs of appeal shall be borne by the Plaintiff.

purport.

Reasons

1. Scope of adjudication of this court;

A. Subjective and preliminary co-litigation is a form of litigation in which all co-litigants settle the dispute between each other with respect to the same legal relationship in a lump sum without contradiction (Article 70(2) of the Civil Procedure Act). It is prohibited to render a judgment on the claims against all co-litigants (Article 70(2) of the Civil Procedure Act), or to render an additional judgment on the remaining co-litigants.

In addition, if one of the main co-litigants or the conjunctive co-litigants files an appeal in a subjective and preliminary co-litigation, the confirmation of the claim part concerning other co-litigants shall be prevented, and it shall be transferred to the appellate court, and in such case, the subject of adjudication on the appeal shall be determined in consideration of the need for the unity of conclusion between the main and preliminary co-litigants and the other parties.

(see Supreme Court Decision 2009Da43355, Feb. 24, 2011). Likewise, in a case where an appeal is filed against any of the main co-litigants and any of the conjunctive co-litigants in a subjective and preliminary co-litigation, such legal doctrine ought to be deemed as having been prevented from confirming the part of the claim against other co-litigants and becoming subject to adjudication in the appellate trial.

B. At the first instance court, the Plaintiff claimed that Defendant B and D jointly and severally pay the Plaintiff KRW 30,000,000,000 and damages for delay, and the said Defendants jointly and severally filed a claim against the Defendant Company and Defendant D to jointly and severally pay the Plaintiff KRW 30,000,000 and damages for delay.

The first instance court accepted the plaintiff's claim against the defendant company, but dismissed both the claim against the defendant B and the main claim against the defendant D and the conjunctive claim against the defendant.

On this issue, the plaintiff is dissatisfied with the part against the plaintiff against the defendant B and D.

참조조문

-민사소송법 제70조 제2항

참조판례

-대법원 2011. 2. 24. 선고 2009다43355 판결

유사 판례

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