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(영문) 서울고등법원 2017.08.18 2017나9987
손해배상 등
Text

1. The plaintiff's appeal is all dismissed.

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

The purport of the claim and appeal is the purport of the appeal.

Reasons

1. The reasoning for the court’s explanation on the legitimacy of the instant lawsuit is as follows: (a) the second 12th 12th 12 judgment of the court of first instance applied “the claim for unjust enrichment” to “the claim for restitution of unjust enrichment; and (b) “the Plaintiff” to “the Defendant” to “the Defendant”; and (c) it is identical to the corresponding part of the judgment of the court of first instance, thereby citing it in accordance with the main sentence of Article 420

2. Accordingly, it is evident that the Plaintiff’s lawsuit in this case is unlawful and its defects cannot be corrected.

On the other hand, Article 219 of the Civil Procedure Act provides that "if a legal action has been accompanied by law and it is impossible to correct such defect, the lawsuit may be dismissed by a judgment without holding any pleadings." Article 219 of the Civil Procedure Act provides that ① the above provision is located in Part II (the first instance court proceedings), not in Part II (the first instance court proceedings), and it is evident that it is also applicable to an appellate court in its system, and ② Article 413 of the Civil Procedure Act separately from the above provision provides that "if it is impossible to correct any defect as an incidental appeal, the appeal may be dismissed by a judgment without holding any pleadings," it shall be dismissed by a judgment without holding any pleadings. However, in full view of the fact that the lawsuit is unlawful as in this case and the requirements for appeal are also satisfied, it shall be deemed that the appellate court's dismissal without holding any pleadings, on the ground that the plaintiff's appeal may not be corrected but it is still unlawful and it shall be deemed that the appeal may not be dismissed by applying Article 219 of the Civil Procedure Act.

Therefore, all of the lawsuits of this case are dismissed in entirety, and the judgment of the court of first instance is just in its conclusion, and it is obvious that the above lawsuit is unlawful and its defects cannot be corrected. Thus, the appeal is dismissed without pleading, and it is so decided as per Disposition.

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