If the principal lawsuit has been rejected due to its illegality, a summary of the Plaintiff’s consent in withdrawal of the counterclaim (affirmative)

Article 244 of the Civil Procedure Act provides that the principal lawsuit which caused the plaintiff to file a counterclaim shall be voluntarily withdrawn and compelling the other party to maintain only the counterclaim resulting therefrom shall not be fair to allow the defendant to withdraw the counterclaim if the plaintiff withdraws the principal lawsuit without the consent of the plaintiff. Thus, it cannot be applied to the case where the principal lawsuit is terminated by being dismissed in an unlawful manner regardless of the plaintiff's intent, and the withdrawal of the counterclaim shall take effect only with the consent of the plaintiff.

Article 244 of the Civil Procedure Act

Counterclaim Plaintiff

Counterclaim Defendant

Daejeon District Court Decision 82Na412 delivered on December 21, 1983

The judgment below is reversed, and the case is remanded to Daejeon District Court Panel Division.

We examine the grounds of appeal.

In its reasoning, the judgment of the court below rendered a judgment revoking the judgment of the court of first instance that dismissed the counterclaim of this case on October 7, 1982 after the judgment of the court of first instance became final and conclusive on the ground that the counterclaim of this case was withdrawn on the ground that Article 244 of the Civil Procedure Act provides that the counterclaim of this case may withdraw the counterclaim without the consent of the defendant when the principal lawsuit was withdrawn, and that Article 244 of the Civil Procedure Act provides that the counterclaim of this case may withdraw the counterclaim of this case without the consent of the plaintiff when the principal lawsuit was withdrawn, as well as the case where the counterclaim of this case is extinguished due to unlawful dismissal as above, shall apply mutatis mutandis to the case where the counterclaim of this case is dismissed, and declaring the termination of the lawsuit. However, Article 244 of the Civil Procedure Act provides that the principal lawsuit causing the plaintiff to remove the counterclaim of this case on its own withdrawal and forcing the other party to maintain only the counterclaim caused by this case on the ground that Article 24 of the Civil Procedure Act provides that the plaintiff may withdraw the counterclaim of this case without the consent without the plaintiff's consent.

Therefore, the judgment of the court below is reversed, and 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.

Justices Yoon Il-young (Presiding Justice)