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1. The incidental appeal by the Defendant (Counterclaim Plaintiff) shall be dismissed;
2. The appeal by the Plaintiff (Counterclaim Defendant) and the addition at the trial.
Reasons
1. We examine, ex officio, the legitimacy of the incidental appeal filed by the Defendant, as to the legitimacy of the incidental appeal.
An appellant may file an incidental appeal not later than the closure of pleadings (Article 403 of the Civil Procedure Act), and at the trial court that appealed only by the plaintiff, the defendant started on November 8, 2017 and closed immediately after the date of pleadings in the fourth instance of the trial of the court of the first instance since the closing of pleadings in the trial of the court of the first instance on November 8, 2017, and it is evident that the assistant director submitted by the defendant submitted the incidental appeal at around 11:34 on the same day after the closing of pleadings.
(B) As seen below, the Defendant’s 3 million won, recognized by the first instance court, has been filing an incidental appeal to seek the increased amount of consolation money, in full view of the relationship between the Plaintiff and the Defendant, and the circumstances leading to the Defendant’s emergency arrest and detention. As such, this is unlawful since it is apparent in the record.
2. Determination as to the defendant's defense prior to the merits
A. The Defendant’s defense falls under a case where the Plaintiff’s selective extension of the litigation procedure may substantially delay the litigation procedure, and such additional modification of the lawsuit is unlawful.
B. 1) The modification of the claim can be made until the time of closing argument in the fact-finding court, unless it is obvious that the modification of the claim does not change the foundation of the claim, and the modification of the purport of the claim and the cause of the claim, which is merely a difference in the resolution method in the same living facts or disputes related to the same economic interest, does not change the foundation of the claim. In addition, in a case where most of the previous litigation data can be used for the deliberation of the new claim, it cannot be said that the delay of the litigation procedure is remarkable (see, e.g., Supreme Court Decision 97Da4416, Apr. 24, 1998).