Whether an appellate court may arbitrarily select and judge a claim which has not been tried at the first instance court in case where several claims are selectively joined (affirmative), and where the result of a trial is recognized as reasonable and the conclusion is the same as the decision of the first instance court, the method of indicating the text thereof.

In a case where several claims are selectively joined from the beginning in the first instance court, and the defendant has filed an appeal, and the judgment of accepting one of them is sentenced to a judgment of accepting one of them, as well as in a case where the defendant has brought an appeal against the judgment that accepted the plaintiff's claim and transferred to the appellate court, even in a case where the claims are selectively joined, the appellate court does not need to first examine and determine the claims cited in the first instance court, and even in a case where the claims are selectively joined, the appellate court may select and judge at will the claims not adjudicated in the first instance among several selective joined claims, but even if the claims are deemed reasonable as a result of the examination and the conclusion is the same as the decision of the first instance court,

Articles 230 and 386 of the Civil Procedure Act

Attorney Lee Jae-ho, Counsel for the plaintiff-appellant

Defendant-Appellant Park Jae-young, Counsel for the defendant-appellant

Busan District Court Decision 90Na11285 delivered on December 27, 1991

The judgment of the court of first instance is reversed and revoked.

The defendant shall implement the registration procedure for transfer of ownership on March 15, 1969 with respect to the real estate recorded in the attached list to the plaintiff.

Of the costs of lawsuit, the costs of the first instance court and the lower court are assessed against the defendant, and the costs of appeal are assessed against the plaintiff.

Defendant 1’s ground of appeal

According to the reasoning of the judgment below, the court below acknowledged the following facts by comprehensively taking account of the adopted evidence, that the plaintiff cultivated her son, night tree, etc. from around March 15, 1969 to the present time while cultivating her friend, night tree, etc. on the attached list. The court below held that the plaintiff was liable to implement the procedure for the registration of transfer of ownership based on the ground to the plaintiff on March 15, 1989, since it is presumed that the plaintiff occupied the above real estate in peace and openly with the intention to own

The above fact-finding and judgment of the court below are just and there is no error in the misapprehension of legal principles as to mistake of facts or incomplete hearing or prescriptive acquisition due to violation of the rules of evidence such as theory of lawsuit

However, according to the records, the plaintiff filed a lawsuit seeking the implementation of the procedure for the transfer registration of ownership based on the sale on March 15, 1969 against the above real estate and sentenced the judgment in favor of the plaintiff on the ground that the first instance court deliberated it. While the defendant raised an objection and filed an appeal and deliberated at the original court on March 15, 1989, the plaintiff selectively joined a claim seeking the implementation of the procedure for the transfer registration of ownership based on the completion of the acquisition by prescription on March 15, 1989. The court below selected the claim for the transfer registration of ownership based on the completion of the acquisition by prescription, which was newly incorporated at the original court and did not judge at the first instance court, and decided to dismiss the defendant's appeal for the same reason as the judgment of the first instance.

In a case where several claims are selectively joined from the beginning in the first instance trial, and the defendant has filed an appeal, and the judgment of accepting one of them is sentenced to a judgment of accepting one claim, as well as in a case where the defendant has filed an appeal against the judgment which accepted the plaintiff's claim, and the claim has been selectively joined after the appellate trial, the appellate court does not need to first examine and determine the claim cited in the first instance trial, and even in a case where the claim is selectively joined after the appellate trial, the appellate court may select and judge at will the claim which is not tried in the first instance among several claims selectedly joined, as the court below did. However, even if it is recognized as reasonable as a result of the examination and the conclusion is the same as the order of the first instance judgment, the defendant

As seen earlier, the court below erred in maintaining the judgment of the first instance on the ground that the judgment of the court of first instance and its conclusion are same (the judgment of the court of first instance is not identical with the judgment of the court of first instance) shall be deemed to have been corrected ex officio, since the court below erred by misapprehending the legal principles as to selective consolidation of claims, and by dismissing the defendant's appeal for the remaining reasons, instead of rendering a separate sentence in the order, and thereby dismissed the

The judgment of the court below is reversed for the above reasons and the facts established by the court below are sufficient to render a direct judgment as to the members. Accordingly, it is so decided as per Disposition by the assent of all participating Justices pursuant to Articles 407 subparag. 1, 95, 96, and 89 of the Civil Procedure Act.

Justices Yoon Young-young (Presiding Justice) Park Young-dong Kim Jong-ho