제1심에서 전부 인용된 청구에 대한 항소의 이익 -대법원 1997. 10. 24. 선고 96다12276 판결을 중심으로-

Supreme court case 96DA12276 includes the following ①, ②, and ③. ① An interest of appeal is required to extend a claim that has been moved to the second instance. ② Even if the implied partial claim of divisible receivable is fully cited in the first instance, there is interest of appeal to expand the claim with respect to the remaining part. ③ Therefore, if the implied partial claim of divisible receivable is fully cited in the first instance and then moved to the second instance, expansion of the claim regarding the remaining part is possible. Regarding part ①, there is a conflict between the opinion that interest of appeal is necessary for the modification of a claim moved to the second instance and the opinion that it is not necessary. Among the Supreme Court rulings, some follow the former view and some follow the latter view. I am against part ① of case 96DA12276, but agree with part ②. And the purpose of case 96DA12276, which is to prevent plaintiffs who won totally in the first instance from being disadvantaged due to the res judicata of the first instance decision, should go beyond the case of quantitatively partial claims for divisible receivable and be applied to the case of the qualitatively partial claims of divisible receivable and indivisible receivable. Among cases where a plaintiff who won totally in the first instance wishes to expand the claim in the second instance, The proportion of implied partial claims for divisible receivables (especially monetary claims) is very large. Therefore, it can be said that case 96DA12276 significantly diluted the differences between opinions on interest of appeal by acknowledging a broad exception to the rule that interest of appeal is not recognized for the claim fully cited in the first instance.