[1] Where a withdrawal of an appeal is made after the expiration of the appeal period, the time the first instance judgment becomes final and conclusive (=the time the appeal period expires)

[2] Whether a lawsuit claiming a partition of co-litigation is an essential co-litigants (affirmative), and where part of co-litigants have filed an appeal in an essential co-litigation, whether the final judgment is interrupted in relation to all co-litigants (affirmative)

[1] Upon withdrawal of an appeal, the lawsuit shall be deemed not to have been pending at the appellate court from the beginning (Article 393(2) and Article 267(1) of the Civil Procedure Act). However, the final judgment of the first instance exists, unlike the withdrawal of the lawsuit taking an appeal or the waiver of the right to appeal. Thus, where the withdrawal of an appeal is made after the expiration of the period for filing an appeal, the judgment of the first instance shall become final and conclusive retroactively to the expiration

[2] Lawsuit of partition of co-litigation is an essential co-litigation in which a co-owner who claims partition becomes a plaintiff and all other co-owners are co-litigants, and in an essential co-litigation requiring a joint decision of judgment between co-litigants and the other party, an appeal raised by some of co-litigants has no effect on other co-litigants, so the final judgment is interrupted in relation to all co-litigants, and the lawsuit is transferred to the appellate court as a whole. Therefore, the judgment of partition of co-litigants is not finalized before the period of appeal has expired for all co-litigants, and even if the period of appeal has expired for some co-owners, the part of judgment against

[1] Articles 266, 267(1), 393, 394, and 396 of the Civil Procedure Act / [2] Article 268 of the Civil Act, Articles 67, 396, 425, and 498 of the Civil Procedure Act

[1] Supreme Court Decision 2015Meu3455 Decided January 14, 2016 (Gong2016Sang, 292) / [2] Supreme Court Decision 2003Da44615, 44622 Decided December 12, 2003 (Gong2004Sang, 129)

Plaintiff 1 and one other (Attorney Choi Jong-min et al., Counsel for the plaintiff-appellant)

Republic of Korea (Law Firm Chungcheong, Attorneys Choi Jong-soo et al., Counsel for the defendant-appellant)

Seoul Northern District Court Decision 2016Na34883 decided April 28, 2017

The judgment below is reversed, and the case is remanded to the Seoul Northern District Court.

1. As to the grounds of appeal Nos. 1 and 2

Where an appeal is withdrawn, the lawsuit shall be deemed not to have been pending in the appellate court (Articles 393(2) and 267(1) of the Civil Procedure Act), but the final judgment of the first instance exists, unlike the withdrawal of the lawsuit to file an appeal or the waiver of the right to file an appeal. As such, where the withdrawal of an appeal is made after the expiration of the period for filing an appeal, the judgment of the first instance becomes final and conclusive retroactively to the expiration of the period for filing an appeal (see Supreme Court Decision 2015Meu3455, Jan. 14, 2016).

According to the reasoning of the judgment below and the record, ① the Seoul Northern District Court rendered a judgment on August 13, 2009 as co-owned property partition. The judgment contains the following facts: “Plaintiffs shall pay 53,212,015 won to each Defendant and 5% interest per annum from the day following the day when the judgment becomes final and conclusive to the day of complete payment (Seoul Northern District Court 2007Gahap2477, hereinafter “the judgment”); ② The Seoul High Court sentenced the judgment to change the judgment, but the Supreme Court reversed and remanded the judgment; ③ on November 19, 2014 and January 15, 2015, the appeals of which the appellate court had been pending, were withdrawn in order and thus ordered to pay the above KRW 15% interest per annum from the date when the appeals of the judgment were withdrawn (hereinafter “the withdrawal date of the appeal of this case”); ④ the Plaintiffs’ withdrawal date of the appeal of this case as 15% interest per annum 16, 2015 to the date of the appeal of this case.

Examining such factual relations in light of the legal principles as seen earlier, the Supreme Court rendered a final and conclusive judgment retroactively to the expiration of the appeal period due to the withdrawal of an appeal after the lapse of the appeal period. Accordingly, the Plaintiffs are obliged to pay to the Defendant the amount calculated at the rate of 53,212,015 won and 5% per annum from the day following the expiration date of the appeal period to the day of full payment.

The judgment of the court below which has the same purport is just, and contrary to what is alleged in the grounds of appeal, there were no errors by misapprehending the legal principles regarding the time of final and conclusive judgment, delay of performance, principle of self-responsibility, effect of final and conclusive judgment and abuse of rights,

2. Regarding ground of appeal No. 3

A lawsuit claiming a partition of co-litigation is an inherent indispensable co-litigation in which a co-owner who claims a partition becomes the plaintiff and all other co-owners are co-litigants, and in an inherent indispensable co-litigation requiring a final judgment between the co-litigants and the other party, an appeal filed by some of co-litigants has its effect against the other co-litigants, so the final judgment is prevented in relation to all co-litigants, and such lawsuit is transferred to the appellate court as a whole (see Supreme Court Decision 2003Da44615, 44622, Dec. 12, 2003). Therefore, the judgment on a partition of co-owned property is not finalized before the period for appeal against all co-litigants expires, and even if the period for appeal against a part of co-litigants expires, the part of the judgment against such co-litigants

Examining the above facts in light of the aforementioned legal principles, the subject case became final and conclusive on October 13, 2009 on September 29, 2009 on which the original copy of the judgment was served on all the parties.

Nevertheless, the lower court determined that the judgment was finalized on September 10, 2009 after the 14th day of the appeal period from August 26, 2009 when the Defendant served the original copy of the judgment. In so doing, the lower court erred by misapprehending the legal doctrine on the time when the judgment became final and conclusive in the litigation for partition of co-owned property, thereby adversely affecting the conclusion of the judgment. The allegation in the grounds of appeal on this point

3. Conclusion

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.

Justices Ko Young-han (Presiding Justice)