A. Where the part of defendant's failure was destroyed or remanded due to the appeal by only the defendant, the scope of the judgment of the court remanded;

B. In the case of paragraph (a) above, grounds that may result in unfavorable consequences to the defendant in the appellate court that received the reversal and transmission

C. In the case of paragraph (a) above, the case where the plaintiff extended the purport of his claim, thereby admitting more claim amount at the original court after remanding than the original court before remanding

A. Where only the defendant appealed and the part of the judgment below on the defendant's failure was reversed and remanded, the scope of the judgment on the case remanded to the court below shall not exceed the above part of the judgment against the defendant, and therefore, the judgment against the defendant shall not be rendered disadvantageous to

B. Since the litigation procedures of the appellate court after remand continue before remanding, parties can submit new facts and evidence in principle, and all procedural acts permitted at that instance, such as change of litigation and expansion of claims, other than filing incidental appeal, may be conducted. For this reason, the Civil Procedure Act does not prohibit any change of disadvantage such as Article 368 of the Criminal Procedure Act, it is inevitable to create unfavorable results to appellant than the judgment prior to remand.

C. The case where the plaintiff's appeal by only defendant was reversed and remanded, thereby expanding the purport of the plaintiff's claim, and thus, the amount of the claim in the court below's judgment after remanding more than the court below's judgment.

Articles 385 (Article 395), and 406 of the Civil Procedure Act

A. Supreme Court Decision 62Da785 delivered on January 24, 1963 (No. 11 ① C&32), 69Nu59 delivered on February 24, 1970 (No. 188Nu1327 delivered on November 14, 1978 (Gong1979, 11629)/B. Supreme Court Decision 66Da1004 delivered on September 20, 196, 67Da1664 delivered on December 23, 1969 (No. 17No. 197) (Gong1982, 108)

Plaintiff

Defendant Kim Jong-sik et al., Counsel for the defendant-appellant

Seoul High Court Decision 90Na26329 delivered on April 11, 1991

The appeal is dismissed.

The costs of appeal are assessed against the defendant.

As to the Grounds of Appeal

Where only the defendant appealed and the part against the defendant against the judgment of the court below is reversed and remanded, the scope of adjudication of the case to be remanded to the court below shall not exceed the above part of the judgment of the court below and therefore, it shall not be disadvantageous to the defendant beyond this limit (Article 78Da1327, Nov. 14, 1978 and Supreme Court Decision 62Da785, Jan. 24, 1963). However, since the litigation procedures of the court of appeal are continued before the remand, in principle, the parties can submit new facts and evidence, and the parties can conduct all procedural acts permitted at that court level other than the alteration of the lawsuit and the incidental appeal, and for this reason, the Civil Procedure Act does not prohibit any change of disadvantage like Article 368 of the Criminal Procedure Act, and it is inevitable to view that it is more unfavorable to the appellant than the judgment prior to remand (Article 67Da164, Dec. 23, 1969; Supreme Court Decision 9Da839, Sep. 28, 1982).

According to the records, when the part of the defendant's complaint as to property damage was reversed and remanded through the appeal by the defendant only, the plaintiff extended the purport of the claim at the court below thereafter, and the court below cited the plaintiff's claim more than the court below's prior to remand within the scope of the claim. Thus, it is justified in accordance with the above legal principles (see, e.g., Supreme Court Decision 66Da1004, Sept. 20, 196), and there is no error in the misapprehension of legal principles as to the scope of the appellate court's trial or in violation of the good faith principle as to the scope of the plaintiff's appeal

Therefore, the appeal is dismissed and the costs of appeal are assessed against the losing defendant. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Sang-won (Presiding Justice)