In a case where both substantially selective consolidation claims have been claimed by the parties with the order of priority around and in reserve, the first instance court dismissed the main claims and rendered a judgment that accepted only the conjunctive claims, and only the defendant appealed, the scope of the appellate court's judgment.

Whether the form of a consolidation is either a selective consolidation or a preliminary consolidation shall be determined on the basis of the nature of the request, not a party’s intention, and the scope of the appellate court’s trial shall also be determined on the basis of the nature of the request for consolidation. Accordingly, in a case where the parties have requested two claims which are substantially selective consolidations, with the primary and preliminary order attached thereto, and the first instance court dismissed the primary claim and rendered a judgment that accepted only the preliminary claim, and only the defendant has filed an appeal, the appellate court shall determine all the two claims

Articles 253 and 415 of the Civil Procedure Act

Plaintiff

Defendant (Attorney Park Tae-won et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2012Na8995 decided November 8, 2013

The judgment below is reversed and the case is remanded to Seoul High Court.

Judgment ex officio is made.

1. Whether the form of a consolidation is either a selective consolidation or a preliminary consolidation shall be determined on the basis of the nature of the claim, not a party’s intent, and the scope of the appellate court’s trial shall also be determined on the basis of the nature of the claim for consolidation. Therefore, even in a case where the two substantially selective consolidation claims were requested by the parties, and the first instance court dismissed the primary claim and rendered a judgment that accepted only the preliminary claim, and only the defendant filed an appeal, the appellate court shall determine all the two claims as the subject of the trial.

2. A. According to the reasoning of the judgment below and the records, the plaintiff's claim of this case is basically a claim for KRW 100 million against the defendant and its delay damages. ① The plaintiff asserted the loan to the defendant as the cause of the claim of this case and changed it to the main claim of this case (hereinafter "the main claim of this case"), and added the conjunctive claim for damages caused by tort (hereinafter "the conjunctive claim of this case"), ② the court of first instance dismissed the main claim of this case, ② the court of first instance accepted the conjunctive claim of this case, and only the defendant appealed the conjunctive claim of this case. ③ The plaintiff appealed the conjunctive claim of this case, ③ the object of the judgment is limited to the conjunctive claim of this case, ③ The defendant's appeal was accepted and dismissed the conjunctive claim of this case on the ground that the defendant's tort is not recognized. ④ Meanwhile, the plaintiff's claim of this case is the conjunctive claim that "the plaintiff lent KRW 100 million to the defendant," and the plaintiff's claim of this case "the plaintiff of this case could have known the purport of inducing the plaintiff "the plaintiff of this case."

B. Examining the above legal principles and the above facts in the record, the primary claim of this case and the conjunctive claim of this case are substantially selective combinations regardless of their titles. Thus, the court below should have judged that the defendant should not only make the conjunctive claim of this case which the defendant is the object of the appeal but also make two claims the object of the trial. Nevertheless, dismissing a claim with only the conjunctive claim of this case as the object of the judgment of the appellate court is erroneous in the misapprehension of legal principles as to the object of the appeal.

3. Therefore, without proceeding to decide on the grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Poe-young (Presiding Justice)