In a case where the defendant did not file an appeal or incidental appeal against the judgment of the court of first instance in favor of the plaintiff partly, and the appellate court partly cites the plaintiff's appeal and rendered a modified judgment, whether the defendant can file an appeal against the part against which the court of first instance lost (negative)

In a case where the plaintiff appealed against the judgment of the court of first instance which partly accepted the plaintiff's claim, but the defendant did not appeal or incidental appeal, the winning part of the judgment of the court of first instance was transferred to the appellate court due to the plaintiff's appeal, but did not belong to the appellate court. Therefore, if the appellate court partly accepted the plaintiff's appeal and partly revoked part of the part against the plaintiff in the judgment of first instance, and accepted the plaintiff's claim against that part, it is limited to the part against the plaintiff in the judgment of first instance, and this part cannot be the defendant's appeal since the appellate court rendered a judgment against the plaintiff in the judgment of first instance as to the part against the plaintiff in the judgment of first instance. The alteration in the judgment at the appellate court is identical to the judgment of partial revocation which dismissed the appeal with respect to the part where the appeal is well-founded, and it is merely in accordance with the part of the judgment of first instance which dismissed the appeal as to the part where the appeal is without merit. Thus, the defendant cannot file an appeal against the judgment of first instance as to the part of the judgment.

Articles 385 and 392 of the Civil Procedure Act;

Supreme Court Decision 80Da2566 Decided February 22, 1983 (Gong1983, 578) Supreme Court Decision 91Da35953 Decided August 18, 1992 (Gong1992, 2739) Supreme Court Decision 92Da14892 Decided November 27, 1992 (Gong1993, 246), Supreme Court Decision 94Da1487 Decided May 26, 1995 (Gong195Ha, 2245) (Gong198Ha, 2245) Supreme Court Decision 98Da5357 Decided May 22, 1998 (Gong198Ha, 1724)

Plaintiff

Yong Industrial Development Co., Ltd. (Attorney Regular Young-soo, Counsel for the defendant-appellant)

Daegu High Court Decision 2000Na4235 delivered on August 31, 2001

The Defendant’s appeal regarding the part of the lower judgment ordering the Plaintiff to pay the amount of KRW 13,385,959 and damages for delay thereof is dismissed. The Defendant’s remaining appeals are dismissed. The costs of appeal are assessed against the Defendant.

1. First, we examine the interest of appeal ex officio.

According to the records, the plaintiff filed a lawsuit against the defendant for damages based on the defendant's tort liability, and the first instance court acknowledged the defendant's tort liability, while recognizing the ratio of the plaintiff's negligence as 40%, and ordered the plaintiff to pay gold 13,385,959 won and damages for delay. The plaintiff only appealed the judgment of the first instance court that recognized the ratio of the plaintiff's negligence to 20% and ordered the defendant to pay the plaintiff the amount of 17,847,946 won and damages for delay.

In a case where the plaintiff appealed against the judgment of the court of first instance which partially accepted the plaintiff's claim, but the defendant did not appeal or incidental appeal, the winning part of the judgment of the court of first instance was transferred to the appellate court due to the plaintiff's appeal, but it was not subject to the judgment of appellate court. Therefore, if the appellate court partly accepted the plaintiff's appeal and partly revoked part of the part against the plaintiff in the judgment of first instance, and accepted the plaintiff's claim against that part, it is limited to the part against the plaintiff in the judgment of first instance, and this part is not subject to the defendant's appeal since the appellate court rendered a judgment against the plaintiff in the judgment of first instance as to the winning part in the judgment of first instance (see Supreme Court Decision 98Da5357 delivered on May 22, 1998). The modified judgment in the appellate court is the same as a partial revocation of the judgment of first instance which revoked part of the judgment of first instance and dismissed the appeal without any justifiable reason, and it is not in accordance with the judgment of the court of first instance's decision's decision's 298Da196.

Therefore, in this case, the Defendant’s appeal filed by the first instance court as to KRW 13,385,959 and the damages for delay on this part shall be deemed unlawful as an appeal as to the portion that cannot be the subject of appeal.

2. Next, we examine the defendant's grounds for appeal.

Examining the reasoning of the judgment below and the reasoning of the judgment of the court of first instance cited by the court below in comparison with the records, the defendant's liability for damages is recognized in light of the facts acknowledged by the court below after compiling the adopted evidence, and the plaintiff's negligence ratio of 20% is just and it is not erroneous in the misapprehension of legal principles as to the liability

3. Therefore, the defendant's appeal as to 13,385,959 won and damages for delay in the defendant's appeal is dismissed. The defendant's remaining appeal is dismissed. The costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Jae- Jae (Presiding Justice)