Requirements for institution of objections in the appellate trial

Although the defendant filed a counterclaim in the appellate court without the plaintiff's consent and there was no trace of pleading on the merits of the counterclaim, the original judgment was erroneous in the judgment to deliberate and decide on the counterclaim.

Article 382 of the Civil Procedure Act

Plaintiff (Counterclaim Defendant)

Defendant (Counterclaim Plaintiff)

Seoul High Court Decision 73Na977, 2090 Decided November 29, 1973

The part concerning the counterclaim in the original judgment shall be reversed, and the case shall be remanded to the Seoul High Court.

The appeal on the part concerning the principal lawsuit shall be dismissed.

With respect to the ground of appeal No. 1 by the Plaintiff (Counterclaim Defendant),

The conclusion of the original judgment is that the parties to the loan for consumption to the non-party is the non-party, and the creditor due to the loan for consumption to the defendant is the non-party, and that the beneficiary of the promissory note No. 3-1 or the person entitled to the provisional registration of this case in the name of the plaintiff is merely for the purpose of securing the above non-party's obligation due to the loan for consumption to the above non-party. Therefore, the conclusion of the judgment in this case is not acceptable by the evidence that the original judgment was based on the original judgment, and therefore, it cannot be adopted because it was attributable to the criticism of the lower

As to ground of appeal No. 2

According to the whole purport of the pleading, the defendant filed a counterclaim at the appellate court, which is the appellate court, and the plaintiff did not consent to it, and there was no trace of pleading on the merits of the counterclaim, but the original judgment was illegal to have deliberated and judged on the counterclaim, and the part on the counterclaim among the original judgment, among the original judgment, shall not be reversed.

As to ground of appeal No. 3

The issue is that the court below's exclusive authority on the determination of cooking and fact-finding from the standpoint conflicting with the original judgment can not be adopted. There is no reason to discuss the issue.

Therefore, pursuant to Articles 400, 406, 395, and 384 of the Civil Procedure Act, a decision is made as per Disposition with the assent of all participating judges.

Justices Rin- Port (Presiding Justice)