소송판결에 대한 상소와 불이익변경금지

• 영문명: Appeal on Dismissal of Lawsuit and Prohibition of Reformatio in Peius
• 발행기관: 한국민사소송법학회
• 저자명: 정상민(Sang Min Jung)
• 간행물 정보: 『민사소송』제29권 제1호, 185~253쪽, 전체 69쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2025.02.28

국문 초록

Article 415 of the Civil Procedure Act only stipulates that “A judgment of the first instance may be altered within the extent of dissatisfaction therewith” under the title “Scope of Admitting Appeal”. It is only an expression of principle of disposition in the appeal, there is no dispute that the principle of prohibiting change of disadvantage is interpreted and recognized. It is difficult to deny that the prohibition of changing disadvantages, which emerged as a guiding ideology in the process of rejecting the principle of common appeal, is ultimately defined as the principle of restraining applications, which is a form of principle of disposition in the appeal. As long as the prohibition of change of disadvantage is regarded as the expression of principle of disposition, which are the basic principles of civil procedure or hearing, the subject of this article, that is, “The Court of Appeal cannot make a substantial judgment on the original judgment, which is a litigant judgment due to the prohibition of change of disadvantage, in accordance with the proviso to Article 415 of the Act on the grounds that the claim is unprovoked.” This is the position of Korean and Japanese precedents. However, given that many policy decisions are made in the structure and rationalization of the procedure of appeals, it is possible to punish profits with other factors by revising and supplementing the position of this essential theory into a policy theory. In the case of policy considerations, principle of prohibiting change of disadvantage can function and be used as a supplementary law in cases where formal and mechanical application of principle of disposition hinders guarantee of appeal rights and interests of appellants and their counterparts. In Germany, Japan and Korea, this theory holds a majority status. This may be because the theoretical basis has its own rationality and validity, and the conclusion has concrete validity. Furthermore, the Seoul High Court's ruling, which carefully reviewed the subject of this paper, raised a better argument based on the claim dismissal theory. If so, the elements, methods, and arguments of the profit sentence can be refined into the Seoul High Court's ruling above based on the theoretical basis that the sentence of profit based on the policy theory can be supplemented in the existing essential theory (the theory of principle of disposition). In the end, based on these discussions, it is expected that the Supreme Court will change in the future.

목차

Ⅰ. 머리말

Ⅱ. 연혁에 대한 검토

Ⅲ. 이론적 근거에 대한 검토

Ⅳ. 비교법적 검토

Ⅴ. 종합적 검토

Ⅵ. 맺음말

키워드

불이익변경금지 소송판결 본안판결 소송종료선언 처분권주의 Verbot der reformatio in peius Prozessurteil Sachurteil Erledigung der Hauptsache Dispositionsmaxime