원고의 부대항소와 청구변경의 관계에 관한 연구

Abstract

When the defendant appeals against the first trial decision that upheld all of the plaintiff’s claims, there are two conflicting theories: the theory that a sub-appeal is necessary to change the plaintiff’s claim (hereinafter referred to as ‘A theory’) and the theory that a sub-appeal is not necessary to change the plaintiff’s claim (hereinafter referred to as ‘B theory’). According to A theory, if the defendant’s appeal is dismissed or withdrawn, the effect of the modification of claim disappears due to the dependency of the sub-appeal. Therefore, the plaintiff must file a separate lawsuit. On the other hand, according to B theory, even if the defendant’s appeal is dismissed or withdrawn, the effect of modification of claim is not affected. In this respect, B theory is helpful for one-time resolution of disputes. In the case of an implied partial claim, according to A theory, there is a possibility that the plaintiff will be disadvantaged in not being able to make the remaining claim due to the effect of the first trial decision in which he or she wins the entire case. On the other hand, according to B theory, this problem does not occur. B theory is theoretically simpler than A theory. Following the B theory, there is no need to determine whether a sub-appeal is an appeal or not, and there is no need to consider the modification of claim as a sub-appeal. Considering these points, I think B theory is valid. In a case in which claim A and claim B are simply combined and a decision is made to cite all claim A and dismiss all or part of claim B in the first trial, according to the theory that interest of appeal is required for modification of claim that has already been transferred to the appellate trial, the plaintiff must sub-appeal in order to change claim A in the appellate trial. There is a theory that the appellant who has already filed an appeal does not have the interest of a sub-appeal, but I believe that in the above case, the plaintiff who has already filed an appeal is allowed to file a sub-appeal. On the other hand, according to the theory that interest of appeal is not necessary for modification of a claim that has already been transferred to the appellate court, the plaintiff can change the claim by appealing, and even if the plaintiff does not appeal, if the defendant appeals, the plaintiff can make an ordinary modification of claim that does not involve an sub-appeal.