제1심법원의 소각하판결에 관한 항소심의 판단 - 불이익변경금지 원칙을 전제로 - (Judgment of Appeal Against the Judgment of the Court of First Instance Dismissing the Lawsuit - On the Premise of the Principle of Verbot der Reformatio in Peius -)

서지정보

· 발행기관 : 한국민사소송법학회
· 수록지 정보 : 민사소송 / 28권 / 2호 / 209 ~ 262페이지
· 저자명 : 이찬양

초록

The plaintiff filed an appeal against the lawsuit decision, and the appellate court heard it. As a result, the lawsuit requirements were not found to be defective, unlike the judgment in the first trial, but there are cases where the claim on the merits is without merit. In this case, if the appellate court rules without remanding the claim, the issue may be whether the claim is groundless and whether the claim should be dismissed or the appeal should be dismissed.
Regarding this topic, the theory of dismissal of claim and the theory of dismissal of appeal are conflicting. Accordingly, from the perspective of the legal principles of claim dismissal, the rationality and validity of the following propositions related to the main issues in this paper were reviewed. Regarding this topic, the possibility of a change in the so-called appeal trial from dismissal of appeal to dismissal of claim, ⅰ) aspects of fairness, equity, and legal status between the parties, ⅱ) aspects of discussions in the trial court and the appellate court, ⅲ) substantive aspects of the dispute and litigation. It was reviewed in terms of economic and legal substantive solutions.
In terms of fairness, equity, and legal status between the parties, first, if the plaintiff appeals against the court of first instance's decision to quash, as a result of the appellate court's review of the case, the requirements under the proviso to Article 418 of the Civil Procedure Act are met, that is, i) the first trial. If the trial has been conducted to the extent that a judgment on the merits can be made, or ⅱ) if there is consent from the parties, making a decision to dismiss the claim does not change it to the plaintiff's disadvantage. Second, if the appellate court interprets that it can only pronounce a judgment on the merits in favor of the appellant, this does not comply with the purpose of Article 418 of the Civil Procedure Act. Third, when the plaintiff appeals the trial court's decision to quash the claim, the appellate court's decision to dismiss the claim does not mean that the plaintiff is treated more unfairly than the defendant. Fourth, if the appellate court decides to dismiss the claim, the legal status granted to the appellant, the plaintiff, under substantive law is not deprived. This is judged to be a reasonable interpretation based on the provisions of the Civil Procedure Act and does not violate the principle of prohibiting disadvantageous changes. Fifth, if the appellate court decides to dismiss the appeal, it becomes difficult to quickly and finally resolve the dispute between the parties, and above all, the burden of having to respond again arises on the defendant. Sixth, if only the defendant appeals against the first trial's dismissal judgment with the intention of seeking a judgment to dismiss the claim, and if the trial results show that the lawsuit is legal and the plaintiff's claim is well-founded, the requirements of the proviso to Article 418 of the Civil Procedure Act are satisfied. As a premise, it is reasonable to interpret the appellate court to cancel the first trial decision and make a ‘judgment citing claims.’ In terms of discussions in the trial court and the appellate court, first, if the decision to dismiss the appeal is confirmed in the appellate trial, there may be a limit to the decision to dismiss the appeal, which was previously erroneously judged by the trial court, due to res judicata. Second, applying the remand theory would only result in postponing or delaying disadvantageous changes that the appellate court could not make to the plaintiff to the trial court, which could unnecessarily make the process more cumbersome. Third, even though the appellate court determines that it is appropriate to render a decision to dismiss the claim, if the decision to dismiss the appeal is made solely based on the application of the principle of prohibition of disadvantageous modification, there is a contradiction between the court judgment and the effect of the judgment. Fourth, in the case in question, if the court of first instance can rule on a dismissal of the claim, but the appellate court cannot rule on a judgment of dismissal of the claim, a question of fairness between the court of first instance and the appellate court may be raised. Fifth, the fact that the appellate court can only make a judgment for the claimant and not a judgment to dismiss the claim is problematic in terms of fairness between the judgment for the claimant and the judgment to dismiss the claim. Sixth, when a judgment on the merits of the first trial is changed to a judgment on the merits in an appeal, or, conversely, a judgment on the merits in the first trial is changed to a judgment on the merits in an appeal, it is reasonable to judge that, in principle, it is not a violation of the principle of prohibition of disadvantageous changes.
In terms of substantive, litigation, economic, and legal resolution of the dispute, first, if the first trial decision is a judgment to dismiss, and the plaintiff appeals against it, i) If the plaintiff's claim is clearly groundless, the appellate court rules to dismiss the claim. It is also reasonable in terms of litigation economics to allow this to be done. Second, if the appellate court rules to dismiss the appeal, it may be difficult to achieve a direct or actual resolution of the dispute between the parties. Third, the interpretation that is most consistent with the provisions of Article 418 of the Civil Procedure Act is judged to be most consistent with the view of the claim dismissal theory.

영어초록

The plaintiff filed an appeal against the lawsuit decision, and the appellate court heard it. As a result, the lawsuit requirements were not found to be defective, unlike the judgment in the first trial, but there are cases where the claim on the merits is without merit. In this case, if the appellate court rules without remanding the claim, the issue may be whether the claim is groundless and whether the claim should be dismissed or the appeal should be dismissed.
Regarding this topic, the theory of dismissal of claim and the theory of dismissal of appeal are conflicting. Accordingly, from the perspective of the legal principles of claim dismissal, the rationality and validity of the following propositions related to the main issues in this paper were reviewed. Regarding this topic, the possibility of a change in the so-called appeal trial from dismissal of appeal to dismissal of claim, ⅰ) aspects of fairness, equity, and legal status between the parties, ⅱ) aspects of discussions in the trial court and the appellate court, ⅲ) substantive aspects of the dispute and litigation. It was reviewed in terms of economic and legal substantive solutions.
In terms of fairness, equity, and legal status between the parties, first, if the plaintiff appeals against the court of first instance's decision to quash, as a result of the appellate court's review of the case, the requirements under the proviso to Article 418 of the Civil Procedure Act are met, that is, i) the first trial. If the trial has been conducted to the extent that a judgment on the merits can be made, or ⅱ) if there is consent from the parties, making a decision to dismiss the claim does not change it to the plaintiff's disadvantage. Second, if the appellate court interprets that it can only pronounce a judgment on the merits in favor of the appellant, this does not comply with the purpose of Article 418 of the Civil Procedure Act. Third, when the plaintiff appeals the trial court's decision to quash the claim, the appellate court's decision to dismiss the claim does not mean that the plaintiff is treated more unfairly than the defendant. Fourth, if the appellate court decides to dismiss the claim, the legal status granted to the appellant, the plaintiff, under substantive law is not deprived. This is judged to be a reasonable interpretation based on the provisions of the Civil Procedure Act and does not violate the principle of prohibiting disadvantageous changes. Fifth, if the appellate court decides to dismiss the appeal, it becomes difficult to quickly and finally resolve the dispute between the parties, and above all, the burden of having to respond again arises on the defendant. Sixth, if only the defendant appeals against the first trial's dismissal judgment with the intention of seeking a judgment to dismiss the claim, and if the trial results show that the lawsuit is legal and the plaintiff's claim is well-founded, the requirements of the proviso to Article 418 of the Civil Procedure Act are satisfied. As a premise, it is reasonable to interpret the appellate court to cancel the first trial decision and make a ‘judgment citing claims.’ In terms of discussions in the trial court and the appellate court, first, if the decision to dismiss the appeal is confirmed in the appellate trial, there may be a limit to the decision to dismiss the appeal, which was previously erroneously judged by the trial court, due to res judicata. Second, applying the remand theory would only result in postponing or delaying disadvantageous changes that the appellate court could not make to the plaintiff to the trial court, which could unnecessarily make the process more cumbersome. Third, even though the appellate court determines that it is appropriate to render a decision to dismiss the claim, if the decision to dismiss the appeal is made solely based on the application of the principle of prohibition of disadvantageous modification, there is a contradiction between the court judgment and the effect of the judgment. Fourth, in the case in question, if the court of first instance can rule on a dismissal of the claim, but the appellate court cannot rule on a judgment of dismissal of the claim, a question of fairness between the court of first instance and the appellate court may be raised. Fifth, the fact that the appellate court can only make a judgment for the claimant and not a judgment to dismiss the claim is problematic in terms of fairness between the judgment for the claimant and the judgment to dismiss the claim. Sixth, when a judgment on the merits of the first trial is changed to a judgment on the merits in an appeal, or, conversely, a judgment on the merits in the first trial is changed to a judgment on the merits in an appeal, it is reasonable to judge that, in principle, it is not a violation of the principle of prohibition of disadvantageous changes.
In terms of substantive, litigation, economic, and legal resolution of the dispute, first, if the first trial decision is a judgment to dismiss, and the plaintiff appeals against it, i) If the plaintiff's claim is clearly groundless, the appellate court rules to dismiss the claim. It is also reasonable in terms of litigation economics to allow this to be done. Second, if the appellate court rules to dismiss the appeal, it may be difficult to achieve a direct or actual resolution of the dispute between the parties. Third, the interpretation that is most consistent with the provisions of Article 418 of the Civil Procedure Act is judged to be most consistent with the view of the claim dismissal theory.

참고자료

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