[1] Whether part of a judgment regarding a selective claim is permitted (negative)

[2] Where an appeal was filed against the judgment of the court of first instance, which dismissed only one of the selective claims, whether the portion of the claim that was not determined, is pending in the court of first instance as a omission of judgment (negative)

[1] The selective consolidation of claims is a combination of claims seeking performance to the same purport or seeking the same formative effect based on the right to form several compatible claims. In a case of selective consolidation, several claims are indivisiblely combined into one litigation procedure. As such, a partial judgment dismissing only one of the selective claims is contrary to the nature of selective consolidation, and is not legally allowed.

[2] The first instance court's determination and dismissal of only one of the selective claims of the plaintiff, and the decision on the remaining claims is unlawful, and as long as the plaintiff appealed against the judgment of the first instance, so long as the plaintiff appealed against the judgment of the first instance, the whole selective claims of the plaintiff were transferred to the appellate court. Thus, the part of the claim that was not determined among selective claims is not a omission of the judgment, and it is not deemed that

[1] Articles 185 and 230 of the Civil Procedure Act / [2] Articles 185, 198, and 230 of the Civil Procedure Act

[1] Supreme Court Decision 81Meu120 delivered on July 13, 1982 (Gong1982, 747)

[Judgment of the court below]

Defendant (Attorney Yu Sung-sung et al., Counsel for the defendant-appellant)

Seoul High Court Decision 95Na9183 delivered on November 17, 1995

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined.

1. On the first ground for appeal

(A) (A) Of the instant building indicated in the attached list 1 of the lower judgment, the lower court rejected the Plaintiff’s claim that the deceased Nonparty 1 gave rise to the cancellation of the above gift agreement on August 25, 1993 on behalf of the deceased Nonparty 1, on the condition that the Defendant would support the deceased Nonparty 1, his mother, and completed the registration of ownership transfer under the name of the Defendant, but the Defendant did not support the deceased Nonparty 1, and rather did violence, and thus, the deceased Nonparty 1 decided to cancel the above donation agreement against the Defendant on August 25, 1993, and gift the shares to the Plaintiff on the same day. Accordingly, the lower court did not have any evidence to view that the deceased Nonparty 1 donated the Plaintiff the shares registered in the name of the instant building on the ground of the cancellation of the above gift agreement on the ground that there was no other evidence that the deceased Nonparty 1 acquired the right to claim ownership transfer registration on the ground of the deceased Nonparty 1’s donation to the deceased Nonparty 1, and that there was no illegality of the agreement between the Plaintiff 1 or his heir 26.

2. On the second ground for appeal

According to the records, the plaintiff, like the above 1-A, sought the ownership transfer registration for the share of the building of this case on August 25, 1993 as mentioned in the above 1-A, in addition to seeking the ownership transfer registration due to the transfer cancellation as of August 25, 1993, by asserting that there was an agreement for the transfer registration as of February 26, 1986, the above 1-B and the above 1-B were filed. However, the court of first instance did not decide only on the claim for the transfer registration based on the transfer cancellation as of August 25, 1993, and dismissed it, and the court below did not decide on the claim for the transfer registration based on the transfer cancellation as of February 26, 1986. The court below did not decide on the above part of the transfer registration as to the claim for the transfer registration as of February 26, 1986 on the ground that the transfer registration claim based on the above agreement was continued to the court of first instance on the ground that it was continued.

The selective consolidation of claims means a combination of claims seeking performance to the same purport or seeking the same formation effect based on several composition rights compatible with each other (see, e.g., Supreme Court Decision 81Meu120, Jul. 13, 1982; Supreme Court Decision 81Meu120, Jul. 13, 1982; Supreme Court Decision 81Meu120, Jul. 13, 1982). In the case of selective consolidation, several claims are indivisible in one litigation procedure; thus, a part of the judgment dismissing only one of the selective claims is contrary to the nature of selective consolidation, and thus, is not allowed under the law.

Therefore, among the selective claims of the plaintiff, the court of first instance rejected the claim for ownership transfer registration on the ground of the cancellation of the gift as of August 25, 1993, and did not make any decision as to the claim for ownership transfer registration on the ground of the transfer agreement as of February 26, 1986, and as long as the plaintiff appealed against the judgment of the court of first instance as above, if the plaintiff appealed against the judgment of first instance as of February 26, 1986, all of the selective claims of this case were transferred to the appellate court as the appellate court. Thus, the court below determined that the plaintiff's selective claims for ownership transfer registration on the ground of the transfer agreement as of February 26, 1986 among the selective claims of this case were pending in the court of first instance as the omission of judgment. It erred by misapprehending the legal principles

However, according to the records, the plaintiff, who is dissatisfied with the judgment of the court of first instance, filed a petition of appeal, and requested only the claim for ownership transfer registration based on the transfer cancellation as of August 25, 1993, as the purport of the appeal, and filed a claim for ownership transfer registration based on the above transfer cancellation as of February 26, 1986, until the closing of argument in the court below, did not submit a preparatory document or make a oral statement. Thus, the plaintiff's objection against the judgment of first instance is limited to the part concerning the claim for ownership transfer registration based on the transfer cancellation as of August 25, 1993, and therefore, the part concerning the above transfer registration based on the transfer cancellation as of February 26, 1986 is not included in the scope of the judgment of the court below.

Therefore, the decision of the court below that did not make a decision on the part concerning the claim for ownership transfer registration based on the transfer agreement as of February 26, 1986 is just in the result of the decision of the court below, and the above error of the court below did not affect the conclusion of the decision.

The argument in the grounds of appeal on this point is not acceptable.

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

Justices Cho Chang-hun (Presiding Justice)