[1] Where the reasoning of the judgment states that a request for judgment is groundless, whether the omission of judgment constitutes an omission of judgment (affirmative in principle), and whether an appeal against the part is legitimate (negative)

[2] In a case where the court of first instance, while explaining that the counterclaim is without merit, failed to make any judgment as to the counterclaim, and the court below ruled that “the defendant’s appeal is all dismissed” in the disposition, citing the reasoning of the judgment of the court of first instance as it is, the case reversing the part concerning the counterclaim, and dismissing the defendant’s appeal

[1] Articles 208 and 212 of the Civil Procedure Act / [2] Articles 208 and 212 of the Civil Procedure Act

[1] Supreme Court Decision 2006Da28256 Decided August 23, 2007, Supreme Court Decision 2005Du15700 Decided November 16, 2007 (Gong2007Ha, 1936)

Plaintiff

Defendant

Gwangju District Court Decision 2012Na7591, 7607 Decided December 13, 2012

The part of the judgment of the court below concerning the counterclaim is reversed, and the judgment of the court below corresponding to that part is revoked, and the defendant's appeal against that part is dismissed. The defendant-Counterclaim plaintiff's appeal against the main claim is dismissed. The total cost of the lawsuit is borne by the defendant-

1. We examine ex officio, as to whether the Defendant (Counterclaim Plaintiff; hereinafter “Defendant”)’s appeal against the counterclaim is legitimate.

A. In a judgment, the issue of whether the judgment was omitted since the conclusion was stated in the text in order to clarify the judgment of the court shall be determined by the entry in the text of the judgment. As such, even if the reasons for the judgment are stated without merit, it shall be deemed that the judgment was omitted unless there exist any special circumstances in the text. If the judgment was omitted, the part of the lawsuit is still pending in the court, and thus, it shall not be subject to lawful appeal. Therefore, an appeal on that part is unlawful (see Supreme Court Decisions 2006Da28256, Aug. 23, 2007; 2005Du15700, Nov. 16, 2007, etc.).

B. According to the records, the first instance court, and the reasoning of the judgment of the court below, in the first instance court, the defendant claimed a counterclaim against the defendant that "the plaintiff (the plaintiff; hereinafter referred to as "the plaintiff") shall pay the plaintiff 20,552,95 won and 20% interest per annum from the day after the delivery of the copy of the complaint of this case to the day of complete payment." While the first instance court states that the defendant's counterclaim is without merit in its reasoning, it did not make any decision as to the defendant's counterclaim (the judgment of the first instance omitted case's case number and case name), the defendant appealed against the principal lawsuit and the counterclaim, and the court below ruled that "the defendant's appeal is dismissed all" in the disposition, citing the reasoning of the judgment of the first instance as is, with regard to the counterclaim claim, by citing the reasoning of the judgment of the first instance court.

In light of the above legal principles, the first instance court failed to make any judgment on the Defendant’s counterclaim and omitted the judgment on the counterclaim, and thus, this part of the claim is still pending in the first instance court and cannot be the legitimate subject of an appeal. Thus, the lower court should have dismissed the Defendant’s appeal on the counterclaim on the ground that the part of the counterclaim is still pending in the first instance court, and dismissed the Defendant’s appeal on the grounds that it is unlawful. However, the lower court did not err by misapprehending the legal principles on the omission of judgment and the subject of an appeal.

2. We examine the Defendant’s grounds of appeal on the part of the main claim.

citing the reasoning of the judgment of the court of first instance, the court below determined that “The defendant was supplied with uniforms equivalent to KRW 51,045,00 from June 12, 2005 to November 23 of the same year by the plaintiff, and sold to the non-party, and received KRW 44,276,950 in total from the non-party seven times from July 25 to December 23 of the same year, and kept for the plaintiff after receiving KRW 44,276,950 from the non-party during the period from July 25 to December 23 of the same year, and only KRW 22,00,000 in total from September 25 to November 25 of the same year, and embezzled the remainder at his own discretion (the court of Seoul Northern District Court rendered a judgment of June 12, 2009 to the non-party, which was sentenced to a suspended sentence of two years (the defendant and the prosecutor appealed damages damages damages amounting to the plaintiff).

In light of the records, the above judgment of the court below is just and acceptable, and there is no error exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules.

3. Therefore, the part concerning the counterclaim in the judgment of the court below is reversed. Since this part of the case is sufficient for the court to directly judge this case, the judgment below is revoked, and the defendant's appeal against this part is dismissed, and the defendant's appeal against this part of the lawsuit is dismissed, and the total cost of the lawsuit is borne by the defendant. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Poe-young (Presiding Justice)