[1] Whether an appeal against a part of the co-litigants in an indispensable co-litigation has an effect on other co-litigants (affirmative)

[2] In a case where Gap filed a lawsuit against 18 co-defendants in the first instance trial against 5 co-defendants in the judgment against 18 but failed to be ruled, and the court below brought an appeal against 5 co-defendants in the lawsuit and proceeded with the lawsuit by designating only them as Appellants, the case holding that the court below should have deliberated and judged on the merits on the grounds that the effect of appeal should have been deemed to affect all co-litigants, even if the lawsuit is deemed to fall under indispensable co-litigations, even if only part of co-litigants were to fall under indispensable co-litigations, and the effect

[1] Article 67 (2) of the Civil Procedure Act / [2] Article 67 (2) of the Civil Procedure Act

[1] Supreme Court Decision 91Da23486 delivered on December 27, 1991 (Gong1992, 773)

National Public Service Trade Union (Attorney Song Young-young, Counsel for defendant-appellant)

Defendant 1 and four others (Attorney Park Jong-chul, Counsel for the defendant-appellant)

Seoul High Court Decision 2010Na18371 decided August 27, 2010

The part of the lower judgment against the Defendants is reversed, and that part of the case is remanded to the Seoul High Court.

The grounds of appeal are examined.

Article 67(2) of the Civil Procedure Act provides that the litigation of the other party against one of the co-litigants in an essential co-litigants shall take effect on all the co-litigants. Thus, an appeal against a part of the co-litigants shall take effect on other co-litigants, and the appeal against the part of the co-litigants shall be deemed to have taken effect on the other co-litigants, and the judgment of the appellate court shall be prevented from confirming all of the indispensable co-litigants and they shall be transferred to the appellate court (see Supreme Court Decision 91Da2348

According to the records, the plaintiff filed a lawsuit against the co-defendant 18 of the court of first instance, who is the person operating the Mapo Hospital, to confirm the duty to provide the labor union office of this case, but was sentenced to a judgment of the court of first instance which was rejected, and then filed an appeal against only the co-defendant 5 of the court below among the above defendants 18. The court below affirmed the lawsuit by designating only the co-defendant 5 of the court below as the appellee, and confirmed that the defendants are liable to provide the labor union office within the hospital building of each plaintiff as stated in the judgment of the court of first instance, upon the changed claim in exchange for the original instance. All appeals against the defendants of the plaintiff are dismissed."

However, according to the reasoning of the judgment below and the records, the co-defendant 18 of the court of first instance, who ordinarily employs more than 300 full-time workers at Lee-do 2, 260, in Jeju-si, is an employer of the above hospital, and the plaintiff entered into the collective agreement of this case with the head of the Mapo Hospital on December 22, 2006 and demanded the above defendants to change their office rooms in the high seas Hospital. Meanwhile, since Jan. 2, 2007, the plaintiff filed an application for remedy for unfair labor practice with the above 18 persons who are the employer, and the above 18 persons were stated as the employer, and the real estate used as the building and the site of the Mapo Hospital as the building and the site of the above 18 persons are registered as the co-defendant 18 of the court of first instance, including part of the co-defendant 18 or some of them, there is room to view that the above co-defendant 1 of the court below's judgment as joint defendant 5's properties and co-ownership of the above hospital.

Therefore, the court below's determination on hospital facilities by treating only five co-defendants of the court below as parties to the judgment of the court of first instance on the ground that the court below did not appeal against the remaining co-defendants of the court of first instance on the ground that the court below did not appeal against the court of first instance on the part of the co-defendants of the court of first instance, even if the plaintiff filed an appeal only to the co-defendants of the court of first instance, the effect of the appeal is deemed to affect all co-defendants of the court of first instance, and it is clear that the court below erred by misapprehending the legal principles as to indispensable co-litigations of the court of first instance or failing to exhaust all necessary deliberations, or by failing to exhaust all necessary deliberations. The ground of appeal pointing this out has merit.

Therefore, without examining the remaining grounds of appeal, the part of the judgment below against the Defendants is reversed, and that part of the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Cha Han-sung (Presiding Justice)