Summary
The appellee may file an incidental appeal until the conclusion of oral argument, even after the right to appeal has been extinguished.
4.1The Standard by Which the Path Opens
There may remain a channel through which the other party can contest its disadvantage in the procedure it has reopened. In principle, change is made within the limits of the challenge, while preserving the statutory exception for recognition of a set-off claim. Plaintiff A and Defendant B each challenge different losing portions, so it is at issue which portions are open to the appellate court. In this scene, where the appellee seeks a modification of the judgment after the appeal period has already run, it must first be determined whether a channel remains through which that demand can be heard.
The provision that answers this question is found in the Civil Procedure Act. Article 403 of the Civil Procedure Act, a provision of the same tenor, ties the appellee's countermeasure to a specific party and period. Its wording places the party designated as the appellee and the act of an incidental appeal, a dependent challenge, within the time limit of "until the conclusion of oral argument," thereby delimiting its scope.
If the wording above is joined to the conclusion, it becomes clear that the extinction of the right to appeal and the availability of an incidental appeal lie at different stages of determination. Even after the right to appeal has been extinguished, the appellee may bring an incidental appeal until the conclusion of oral argument (Article 403 of the Civil Procedure Act); therefore, the mere lapse of the appeal period cannot be taken to mean that all channels for seeking modification have closed. Once the scope of the challenge is specified by an appeal meeting the time and cure requirements or by a lawful incidental appeal, the entrance to this relief opens.
The loss targeted by the counterargument, however, is not light, because an incidental appeal may deter the initial appeal. The basis is that the incentive to file a notice of appeal from the outset diminishes, since the appellee can simply prepare a response later, and a technical error in the description of the scope of the challenge may entrench a substantive error. Even so, the extinction of the right to appeal cannot be written as identical to the extinction of the availability of an incidental appeal. If, erasing the determination that the conditions closing the doors of the two channels differ from each other, one merges the two into one for convenience, the result is not to reduce the disadvantage the counterargument points out but to eliminate as well the channel the law has left.
The facts confirmed in the synthetic scene are only that Plaintiff A and Defendant B each challenge different losing portions. It has not been determined who filed the notice of appeal, how service of the written judgment and the performance of the cure, the arising and lapse of impediments, the filing of an incidental appeal, and the scope of the challenge appear in the record. Accordingly, the scene alone cannot determine which portions are open to the appellate court. If the appellee's lawful incidental appeal is confirmed, the extinction of the independent right to appeal alone does not bar a demand for modification; but absent such confirmation, this section remains undetermined.
The conclusion this section permits is narrow. It extends no further than to render the determination on the entrance to this relief, under the conditions of specification of the scope of the challenge, specification of the claim, and the defensibility of the chosen action, without equating the lapse of the appeal period with the extinction of the availability of an incidental appeal. Conversely, to write that all such cases are capable of relief where those conditions are unmet and only the extinction of the right to appeal is confirmed is likewise not the conclusion of this section.
4.2The Conditions That Block Relief
The conclusion of the preceding stage of analysis carries over in the single sentence that, in principle, change is made within the limits of the challenge while preserving the statutory exception for recognition of a set-off claim. Here the question is whether, even though the appeal period has already run, the appellee may demand a modification of the original judgment, and what the conditions are under which relief closes.
Article 403 of the Civil Procedure Act sets out the provision answering this question. The Article provides that the appellee may bring an incidental appeal until the conclusion of oral argument even after the right to appeal has been extinguished. The party indicated by this wording is the appellee, the side against whom the appeal is taken; the act is the incidental appeal, a dependent challenge raised in the appellate proceedings; and the condition is that, even though the right to appeal has already been extinguished, oral argument has not yet concluded. This section is confined to the wording of this Article.
The core linking this Article to the conclusion of this section lies in treating the right to appeal and the availability of an incidental appeal as different things. That the right to appeal is extinguished means that the independent channel of appealing oneself is blocked; that the availability of an incidental appeal remains means that the channel of lodging a challenge dependent on the appellate proceedings opened by the other party is still open. The two differ both in the time at which they arise and in their requirements. Therefore, where the appeal period has passed, the requirements of later supplementation are unmet, and no such channel as an incidental appeal exists, the channel of relief closes if even one of the statutory requirements is not satisfied.
The strongest counterargument targets the point that an incidental appeal may deter the initial appeal. The expectation that the appellee may strike back with an incidental appeal inclines the party who would appeal on its own to hold off, weighing cost and examination, and the resulting disadvantage is that a technical error in the description of the scope of the challenge may leave a substantive error as it stands. The author answers without erasing these losses: so long as the distinction in the Article is maintained—that even without the right to appeal a separate channel for an incidental appeal remains if it is before the conclusion of oral argument—the foregoing distinction cannot be folded away in order to compel the initial appeal.
The facts confirmed in the synthetic scene are that Plaintiff A and Defendant B each challenge different losing portions, so it is at issue which portions are open to the appellate court. On this scene alone it has not been determined when the written judgment was served, whether a notice of appeal was filed, whether the cure was performed, the arising and removal of impediments, or whether an incidental appeal was brought. If the appellee's lawful incidental appeal is confirmed, the extinction of the independent right to appeal alone does not bar a demand for modification. Conversely, if it is confirmed that there is no channel of incidental appeal and only the appeal period has run, relief is barred. Items for which the impediments necessary for service or later supplementation are not confirmed remain undetermined.
The conclusion this section permits is narrow. Where the appeal period has passed, the requirements of later supplementation are unmet, and no such channel as an incidental appeal exists, so that even one of the statutory requirements is not satisfied, the appellee cannot seek a modification of the original judgment. The impermissible conclusion is to equate the extinction of the right to appeal with the extinction of the availability of an incidental appeal. Conversely, where a lawful incidental appeal is confirmed, that channel alone does not bar a demand for modification; this too falls within the scope of this section. Whether that incidental appeal is actually granted and results in modification is not determined here.
4.3The Boundary That Remains When There Is No Data
As organized up to the preceding stage, in principle change is made within the limits of the challenge while preserving the statutory exception for recognition of a set-off claim. What that conclusion addressed was the breadth of the change; now at issue is how the appellee finds the remaining ground after that breadth has already closed. If the appeal period has run, may the appellee seek modification, and where lies the boundary that cannot be determined for want of materials? This question asks together whether a channel survives independently of the extinguished right to appeal, and what can be said when the very record on which the channel is to be judged is empty.
The relevant wording is Article 403 of the Civil Procedure Act. Article 403 (Incidental Appeal): The appellee may bring an incidental appeal until the conclusion of oral argument even after the right to appeal has been extinguished. The party this wording fixes is the appellee, and the act is the incidental appeal, that is, the dependent challenge the appellee raises in the appellate proceedings. The conditions are two. The point in time of "even after the right to appeal has been extinguished" and the time limit of "until the conclusion of oral argument" are placed together. Accordingly, the wording alone determines both that the appellee may file an incidental appeal even after the appeal period has lapsed, and how long that incidental appeal remains effective (Article 403 of the Civil Procedure Act).
To connect this wording with the conclusion of this section, two determinations must be kept apart. One is the existence of the right to appeal; the other is the availability of an incidental appeal. The former is the right to open appellate examination of the judgment for one's own challenge; the latter is the channel for widening the challenge in a dependent manner against the other party within the appellate proceedings already opened. Article 403 states that the latter remains even after the former is extinguished; to write the two as the same erases the distinction the wording sets. So long as this distinction is preserved, matters for which the adjudicative materials are not specified remain undetermined, as distinct from impossible. Where the arising and removal of impediments are not confirmed, it cannot be asserted either that the channel is closed or that it is open.
The unease this distinction targets is real. An incidental appeal may deter the initial appeal. If one appeals first, one responds passively in anticipation that the other party will follow and widen the scope of the challenge, and room remains for a technical error in describing the scope of the challenge to the judgment to entrench a substantive error as it stands. Even without erasing this loss and inconvenience, the extinction of the right to appeal cannot be written as the same as the extinction of the availability of an incidental appeal, because Article 403, in the passage "even after [extinction]," already presupposes extinction while leaving open the possibility up to the conclusion of oral argument. The weight of the counterargument is acknowledged, but the answer is not given by closing in advance the channel the wording permits.
What is confirmed in the synthetic scene is only the fact that Plaintiff A and Defendant B each challenge different losing portions, so it is at issue which portions are open to the appellate court. Service of the written judgment, the notice of appeal, performance of the cure, the lapse of impediments, the incidental appeal, and satisfaction of the scope of the challenge have not been confirmed. Whether either side's appeal met the time requirement and the cure requirement, when the impediment arose and when it was removed, and whether the appellee actually filed an incidental appeal cannot be determined from the scene. At present, without that confirmation, these are matters for which the adjudicative materials are not specified, and they are not adjudged impossible but left undetermined.
The conclusion this section permits is narrow. On the sole circumstance that the extinction of the right to appeal is confirmed, it cannot be written that all of the appellee's demands for modification are barred; conversely, where the lapse of the appeal period, the unmet requirements of later supplementation, and the absence of such a channel as an incidental appeal are confirmed together, the channel closes. Conversely, matters for which the time of service or the lapse of impediments is not confirmed fall on neither side, and converting a lack of materials into an inability to obtain relief is a conclusion this section does not permit. The point that the description of the scope of the challenge defines the range in which the original judgment is altered, however, remains unaddressed here.
4.4The Records Needed for Determination
To determine in this scene which portions are open, the question of whether the appellee may seek modification when the appeal period has passed must be considered together with the question of what materials distinguish those stages. To adjudicate the stages without fixing the kinds of materials allows presumption to take the place of the record.
The provision corresponding to this question fixes the appellee's status and the point in time together. Article 403 of the Civil Procedure Act provides that "even after the right to appeal has been extinguished" the appellee may bring an incidental appeal until the conclusion of oral argument. Here the appellee is the counterparty who did not file the original appeal and whose right to appeal has already been extinguished, and the point at which that party raises the dependent challenge of an incidental appeal is before the conclusion of oral argument. In other words, this wording sets the point of extinction of the right to appeal and the point at which the availability of an incidental appeal is maintained differently from each other.
Service of the written judgment, the notice of appeal, performance of the cure, the lapse of impediments, the incidental appeal, and confirmation of the scope of the challenge distinguish the extinction of the right to appeal from the availability of an incidental appeal. These materials separately show when the right to appeal was extinguished, when the incidental appeal was raised, and to which portions that challenge extends. The stage determination is made only upon the established record, and absent records are not filled with presumptions. As noted above, the wording distinguishes the point of extinction of the right to appeal from the point of the incidental appeal; the record too must therefore contain the basis for each of these two points. If the point of one is drawn out of the record of the other alone, both distinctions collapse.
The point most strongly targeted by the counterargument that a technical error in describing the scope of the challenge may entrench a substantive error is this distinction in the record. If a clerical error existed in the statement of scope and the challenge raised was in fact aimed at a different portion, a stage determination clinging only to that statement risks closing the way to correct the substantive error of that portion on appeal. Article 403, as confirmed above, permits an incidental appeal until the conclusion of oral argument even after the extinction of the right to appeal; the extinction of the independent right to appeal therefore does not at once bar all of the appellee's demands for modification.
Dates, amounts, and outcomes are not determined. Since Plaintiff A and Defendant B each challenge different losing portions, which challenge is an independent appeal and which is an incidental appeal must be confirmed in the record of service of the written judgment, the notice of appeal, performance of the cure, the lapse of impediments, the incidental appeal, and the scope of the challenge. Where the arising and removal of impediments necessary for service or later supplementation are not confirmed, that issue remains undetermined.
The conclusion this section permits extends no further than distinguishing the extinction of the right to appeal from the extinction of the availability of an incidental appeal, and what result the clerical error in the statement of scope noted by the counterargument produces is left open until it is confirmed by the record. To determine whether the appellee may seek modification after the appeal period has run, it suffices to examine what each of the kinds of record set out above shows; no other facts are added to advance or defer the stage. Next, if the record is complete, it is determined on that basis who hears the merits on appeal.
4.5Circumstances That Change the Decision
This determination rests on the service of the written judgment, the notice of appeal, compliance with the correction order, the passage of the obstacle, the incidental appeal, and the scope of challenge. Without that record, the conclusion remains undetermined. Since the preceding section set out the kinds of that record, the question now is how the channel of incidental appeal among them actually operates. In particular, the question this time is whether the appellee may seek a change to his own disadvantage even after the appeal period has already expired and the appellee can no longer exercise the right to appeal any further on his own.
The provision that answers this question is Article 403 of the Civil Procedure Act. That Article provides: "Article 403 (Incidental Appeal) The appellee may file an incidental appeal even after the right to appeal has been extinguished, until the close of oral argument" (Article 403 of the Civil Procedure Act). The subject this provision first sets down is the appellee. This denotes the opposing party in a case where an appeal has been filed against the judgment of the court of first instance and that judgment has become pending before the appellate court, and the act the provision secondly sets down is the filing of an incidental appeal, a form of dependent challenge. And the temporal condition permitting that act consists precisely of the two temporal limitations, "even after the right to appeal has been extinguished" and "until the close of oral argument."
These two temporal limitations must be read together before the standard of the determination becomes clear. The former limitation points to the circumstance that the appellee has already lost the right to appeal on his own motion, and the latter to the circumstance that what is done is not to revive that lost right but to keep open a separate channel of incidental appeal. Because these two stages are not the same, the appellee's request for a change cannot be blocked on the basis of the extinction of the right to appeal alone. Put differently, the extinction of the right to appeal means that the appellee can no longer raise a challenge by way of an appeal; it does not mean that the possibility of his raising a challenge by way of an incidental appeal has also ended. So long as that possibility remains alive, the channel for contesting any part of the original judgment to his disadvantage remains intact.
When the distinction is drawn this way, the loss aimed at by the counterargument must not be overlooked. If incidental appeals are allowed broadly, a party dissatisfied with the judgment of the court of first instance may be unable to file the initial appeal with ease. This is because, if, out of fear that the opposing party will come back with an incidental appeal, he is unwilling to run the risk of having to give back even the parts on which he prevailed, the number of cases entrusted to the appellate court will itself diminish. Moreover, in setting out the scope of challenge, once a scope is technically fixed in advance, a disadvantage may arise whereby substantive errors lying outside that scope remain as they are and become fixed in the judgment. Even while concretely recognizing such benefits and inconveniences, the extinction of the right to appeal cannot be written as the same as the extinction of the possibility of an incidental appeal, because the provision regulates the two separately with respect to different points in time.
From the scene in which Plaintiff A and Defendant B each challenge different losing portions, so that it becomes a matter of issue which portions are open before the appellate court, the fact corresponding to this question is whether the incidental appeal is lawful. If it is confirmed that, notwithstanding the expiration of the appeal period, either A or B, among the appellees, filed a lawful incidental appeal against the other party as appellee before the close of oral argument, the conclusion that a request for change cannot be blocked by the mere extinction of the independent right to appeal operates as written. It has not been confirmed when any written judgment was served, when the notice of appeal was filed, whether the correction was complied with, and further how the occurrence and resolution of that obstacle unfolded. Therefore, which point in time precedes the close of oral argument and for whom the requirements of an incidental appeal have been satisfied cannot be determined from this scene alone, and that indeterminacy remains as it is without altering the narrow conclusion of this determination.
With this, the boundary between the conclusion this section permits and the conclusion it does not permit becomes clear. The permitted conclusion is that, if the appellee's lawful incidental appeal is confirmed, a request for change cannot be blocked by the mere extinction of the independent right to appeal; the conclusion not permitted is to assert that the extinction of the right to appeal is the same as the extinction of the possibility of an incidental appeal. An incidental appeal denotes the dependent challenge raised by the appellee in the appellate proceedings, and only when its lawfulness is confirmed is judgment rendered within this boundary.
4.6The Strongest Counterargument and the Answer
As established by the preceding stage, in principle the change is made within the limits of the challenge, while preserving the statutory exception for the recognition of a set-off assertion. This sentence carries over only the procedural standard that the scope of challenge becomes the limit on alteration of the judgment. The question now laid upon it is whether the appellee may seek relief that expands his losing portion even after he has already lost the right to appeal. The scene in which the appellate court admits a change beyond the scope of the initial appeal and the scene in which the appellee himself demands a change are examined separately.
The provision corresponding to this question is Article 403 of the Civil Procedure Act. That Article provides: "The appellee may file an incidental appeal even after the right to appeal has been extinguished, until the close of oral argument." In this sentence the subject is the appellee, the temporal condition in which he is placed is after the extinction of the right to appeal, the permitted act is an incidental appeal, and the endpoint of that act is the close of oral argument. Here, an incidental appeal denotes the dependent challenge raised by the appellee in the appellate proceedings. The word 'dependent' means that the incidental appeal operates only within the appellate proceedings already instituted by another party, and accordingly this Article is not a provision concerning the computation of the appellee's own independent appeal period. The temporal marker of the close of oral argument only sets the deadline for permitting the act; it does not, within this sentence, determine the scope or effect of the alteration of the judgment that accompanies it.
Set against the standard of the limits of challenge previously carried over, it becomes apparent that the extinction of the right to appeal and the extinction of the possibility of an incidental appeal are determinations placed on separate time axes. The former is distinct from the requirement of the latter, which asks whether the period within which the appellee himself may file an independent appeal has passed. The author asserts precisely on this distinction that the extinction of the right to appeal cannot be written as the same as the extinction of the possibility of an incidental appeal. Therefore, on the sole fact that the appellee missed his independent appeal period, it cannot be recorded that he may not file an incidental appeal before the close of oral argument within the appellate proceedings already opened. This determination, however, presupposes the stage at which the channel of appeal is opened as a means of altering the original judgment. That channel operates where the scope of challenge is specified by an appeal satisfying the period and correction requirements or by a lawful incidental appeal, and which of the two requirements is applicable is confirmed separately.
The strongest counterargument points to the loss that the incidental appeal system may chill the initial appeal. If the appellee can draw even his own disadvantages into the proceedings instituted by the other party, then when Plaintiff A and Defendant B weigh whether to appeal, they must also reckon with the point that a technical error in the scope of challenge may fix substantive errors in place. The content of the counterargument is that if both parties feel that, merely owing to the omission of a slight indication of challenge as to their own losing portions, they are left defenseless against a request for change broadened by the other side, they will hesitate to participate in the proceedings at all. Yet the disadvantage targeted by this counterargument does not serve as a ground for equating the extinction of the right to appeal with the extinction of the possibility of an incidental appeal even in a scene where the requirements for an actual incidental appeal have not been met. Conversely, where the appeal period has lapsed, the requirements for nunc pro tunc supplementation are also unmet, and no corresponding channel such as an incidental appeal exists, the channel for a request for change is closed.
To gauge what this distinction actually decides in a synthetic scenario, the setting is left as it stands: Plaintiff A and Defendant B each challenge different losing portions, so that it becomes a matter of issue which portions are open before the appellate court. The facts as to which of the two parties filed an incidental appeal before the close of oral argument, and which of them observed the independent appeal period, are not settled in this scene. Accordingly, what can be determined from the present scene is only the conditional distinction that the two determinative stages are separate, and which party's scope of challenge remains open is left undetermined. Unless the occurrence and resolution of the obstacle necessary for service or nunc pro tunc supplementation are confirmed, the question of effectiveness cannot be determined either.
The conclusion permitted in this section is that on the sole fact that the appellee has lost the independent right to appeal, it cannot be asserted that he may not file an incidental appeal before the close of oral argument; the conclusion not permitted is to describe the extinction of the right to appeal and the extinction of the possibility of an incidental appeal as the same thing. The disadvantage of a chilling of participation in the proceedings raised by the counterargument is left standing as it is, but that disadvantage is not regarded as overturning the distinction drawn by the text.
4.7The Link to the Application and the Dispositive Part
Taking from the preceding section the proposition that the extinction of the right to appeal cannot be treated as the same as the extinction of the possibility of an incidental appeal, the analysis now turns to the question of the point in time indicated by that distinction. If Defendant B let the period pass without appealing, must he go on carrying his disadvantageous portion into the appellate court as it stands? Here, an incidental appeal denotes the dependent challenge raised by the appellee in the appellate proceedings, and what this section addresses is whether the appellee may seek a change even after the point in time at which the appeal period is declared to have lapsed. (Article 403 of the Civil Procedure Act)
The provision that answers this question is placed in Article 403 of the Civil Procedure Act. That Article declares: "Article 403 (Incidental Appeal) The appellee may file an incidental appeal even after the right to appeal has been extinguished, until the close of oral argument" (Article 403 of the Civil Procedure Act). The subject this provision first fixes is the appellee. By appellee is meant the party who stands in the position of appellee in the appellate court where that court has been opened by the other party's appeal, a position separate from whether he files his own independent appeal. Accordingly, the act in the text is an incidental appeal, and its timing is limited to the period after the extinction of the right to appeal while oral argument has not yet been closed. This Article does not determine in full all the requirements of an incidental appeal or the scope of its effect. In this section, that scope is limited to the subject, act, and conditions indicated by the wording of the above clause.
Distinguishing what the above wording prohibits from what it permits brings the conclusion of this section to light. The expression "after the right to appeal has been extinguished" spoken of by the Article refers to the case where one's own independent right to appeal has already disappeared in point of time. That the text then continues with the permissive wording "may file an incidental appeal until the close of oral argument" means that the extinction of the independent right to appeal and the extinction of the possibility of an incidental appeal are not to be regarded as the same. If asked why these two stages must be distinguished, the former examines the temporal validity of one's own challenge, whereas the latter is a separate channel for expanding one's own interests in reverse within the appellate court opened by the other party. Therefore the conclusion holds that the appellee may file an incidental appeal until the close of oral argument even after the extinction of the right to appeal, and this becomes the standard that determines how much is to be contested in the appellate court.
This distinction, however, is followed by a strong counterargument. If incidental appeals are freely permitted, the party who filed the initial appeal may fear that, after narrowly describing the scope of his own challenge, the whole matter will be opened up again through the other party's incidental appeal, and the gist of that counterargument is that such a psychology may chill the initial appeal itself. The counterargument is not a light one, in that a technical error in the scope of challenge may fix substantive errors in place; for the Article expressly designates the period after the extinction of the right to appeal as the starting point of an incidental appeal, and the chilling effect the counterargument points out is part of the burden intended by the incidental appeal system and does not become a ground for the extinction of the possibility of an incidental appeal itself. This answer does not erase the unfavorable part of the counterargument. The predictability of the party who filed the initial appeal remains as a cost.
In this scene, this distinction can be matched up as follows. Plaintiff A and Defendant B each challenge different losing portions, so that, if Defendant B is said to have passed the appeal period with respect to his own disadvantageous portion, it becomes a matter of issue whether that portion is closed to the appellate court. If the channel by way of an incidental appeal is confirmed at such a point in time, then in accordance with the wording of the Article he may seek that change until the close of oral argument. In this scene, however, the date of service of the written judgment, whether a notice of appeal was submitted, whether the correction was complied with, whether the obstacle arose or was resolved, whether an incidental appeal was actually filed, and the specific content of each scope of challenge are not settled. Accordingly, whether the appeal period has lapsed, whether the requirements for nunc pro tunc supplementation have been met, and whether the incidental appeal is lawful cannot be determined from this scene alone, and those items remain undetermined. What the scene determines is only the position of the question that it is at issue which portions are open.
The conclusion this section permits is that after the extinction of the right to appeal the possibility of an incidental appeal remains until the close of oral argument; this does not itself mean that the appellate court can alter the original judgment in its entirety. The conclusion this section does not permit is that the extinction of the right to appeal is at once the extinction of the possibility of an incidental appeal; conversely, neither is it asserted that the possibility of an incidental appeal alone brings about the acceptance of any change. Whether the channel is open and whether the original judgment is actually changed through that channel remain separate questions.
4.8The Scope This Section Undertakes
The preceding stage set the direction that, in principle, changes are made within the limits of the challenge while preserving the statutory exception for the recognition of a set-off assertion. The question remaining now is whether, if the appeal period has lapsed, the appellee cannot seek a change.
The provision that answers this question is in Article 403 of the Civil Procedure Act. That provision provides: "Article 403 (Incidental Appeal) The appellee may file an incidental appeal even after the right to appeal has been extinguished, until the close of oral argument." The subject indicated by this provision is the appellee, the act is an incidental appeal in the appellate proceedings, and the condition is that even after the extinction of the right to appeal, it must be before the close of oral argument.
Connecting this wording with the conclusion of this section reveals that the extinction of the right to appeal and the blocking of a request for change are not matters to be determined at the same stage. Even where the independent right to appeal has already disappeared, the channel by which the appellee may file an incidental appeal as a dependent challenge is separately open. If these two are not distinguished, the opportunity of an independent appeal that has already passed, as with prescription, and the opportunity of a dependent challenge that still remains are tied into a single lump.
The counterargument that an incidental appeal may chill the initial appeal points to the most persuasive target: the anxiety that a technical error in the scope of challenge may fix substantive errors in place. If one side narrowly challenges only the parts it lost, the other party is cornered on the ground that he has already missed the new independent appeal opportunity for addressing his own disadvantage. Even so, the foregoing answer stands. The extinction of the right to appeal cannot be written as the same as the extinction of the possibility of an incidental appeal, nor does it erase the disadvantage the counterargument points out.
Returning to the synthetic scenario, with A and B each challenging different losing portions, it becomes a matter of issue which party's disadvantage shall be placed back within the scope of adjudication. Service of the written judgment, the notice of appeal, compliance with the correction, the passage of the obstacle, the incidental appeal, and satisfaction of the scope of challenge must be confirmed. However, unless the time of service or the occurrence and resolution of the obstacle are confirmed, whether the requirements for nunc pro tunc supplementation are met remains undetermined.
The conclusion this section permits extends to the determination that after the extinction of the right to appeal the channel of an incidental appeal remains open until the close of oral argument, and to the distinction that apprehends that channel as a dependent challenge. What it does not permit is the conclusion that reads the lapse of the appeal period immediately as an inability to make any request for change. Conversely, viewing the filing of an incidental appeal itself as reviving the independent right to appeal also lies outside the scope of this section.
4.9Application of the Text of the Provisions and the Holdings of Precedents
판결서 송달·항소장·보정 이행·장애 경과·부대항소·불복 범위가 그 가림의 기록이 된다. 항소기간이 지났으면 피항소인은 변경을 구할 수 없는가 하는 물음이 남는다.
이 물음에 해당하는 원문은 다음과 같다. 민사소송법 제403조는 “피항소인은 항소권이 소멸된 뒤에도” 부대항소할 수 있다고 규정한다. 여기서 피항소인은 항소장에 의하여 항소제기가 된 사람을 말한다. 항소권 소멸은 피항소인 자신의 독립 항소권이 끝난 상태를 가리키며, 부대항소는 피항소인이 항소절차에서 제기하는 종속적 불복이다.
이 문언은 항소로 원판결을 바꿀 통로의 판정 근거가 된다. 해당 원문 범위 안의 문언만 적용하며, 판결이유나 다른 항까지 넓히지 않는다. 따라서 두 단계를 나누어 보아야 한다. 먼저 누가 언제 독립 항소권을 잃는지, 그다음 그러한 소멸에도 불구하고 피항소인이 어떤 통로로 변경을 구할 수 있는지가 별개의 질문이다.
불복 범위의 기술적 실수가 실체적 오류를 고착할 수 있다는 점에서 불편과 손실이 구체적이다. 다만 이는 가능성을 남기는 답이지 부대항소가 성립·적법함을 미리 확인한 판단은 아니다.
합성 장면에서 원고 A와 피고 B는 각기 다른 패소 부분에 불복하므로 어느 쪽이 피항소인인지, 어느 부분이 불복 범위인지 정해진 바가 없다. 송달 시각이나 항소장 제출, 보정 이행, 장애의 발생·해소도 확인되지 않았다. 시점과 이행 여부가 확인되지 않은 사항은 미확정으로 남는다.
따라서 이 절은 부대항소라는 종속적 불복의 문언이 피항소인에게 통로를 남긴다는 좁은 결론을 허용한다. 다만 그 문언만으로 특정 당사자의 변경 요구가 열렸다고 단정하거나, 판결이유나 다른 항의 판단을 확보한 것은 아니다. 합성 장면에 없는 연도·금액·기산일이나 판결 결과는 확정할 수 없다.
4.10Fine Distinctions Within the Stage
그 한도를 넘는 변경을 누가 어떤 자격으로 구할 수 있는지가 이 물음이다.
민사소송법 제403조는 부대항소의 주체와 시한을 직접 정한다. 해당 조문은 “피항소인은 항소권이 소멸된 뒤에도”라는 구절로 항소권이 이미 사라진 때에도 부대항소가 가능함을 가리키고, “변론이 종결될 때까지”라는 구절로 행사할 수 있는 시점의 끝을 정한다. 부대항소란 피항소인이 항소절차에서 제기하는 종속적 불복을 뜻한다.
따라서 단계 안의 세부 구분은 명시한 조건에 한정된다. 이 통로가 열리는 것은 기간·보정 요건을 갖춘 항소 또는 적법한 부대항소로 불복 범위를 특정한 경우이고, 막히는 것은 항소기간이 지났고 추후보완 요건도 충족되지 않으며 부대항소 등 해당 통로도 없는 경우다. 송달 또는 추후보완에 필요한 장애의 발생·해소가 확인되지 않은 경우에는 미확정으로 남는다.
부대항소가 최초 항소를 위축시킬 수 있다는 점은 가장 강한 반론이다. 먼저 판결에 불만이 있어도 상대방이 부대항소로 맞불을 놓을 것을 우려하여 항소를 포기하는 쪽이 생길 수 있고, 불복 범위의 기술적 실수가 실체적 오류를 고착시킬 수도 있다. 그러나 그러한 손실을 인정한다 해도, 항소권 소멸을 부대항소 가능성의 소멸과 같다고 쓸 수는 없다. 조문이 두 시점을 나누어 정한 문언이 그 구별을 지탱한다.
합성 장면에서 원고 A와 피고 B는 각기 다른 패소 부분에 불복하고 있으며, 판결서 송달·항소장·보정 이행·장애 경과·부대항소·불복 범위가 기록으로 살펴볼 대상이다. 승패·회수·현장 효과는 확정할 수 없고, 연도·금액·기산일도 설정되어 있지 않다.
이 절에서 허용되는 결론은 불복 한도 안에서 바꾸되 상계 주장 인정의 법정 예외를 보존한다는 한도 내에서, 피항소인의 변경 요구도 부대항소라는 통로를 조건으로 남겨 둔다는 것이다. 허용되지 않는 결론은 항소권의 소멸을 곧바로 부대항소 가능성의 소멸로 읽는 판단이다.
4.11Synthesis of Effectiveness, Blockage, and Undetermination
이 장면에서 판결서 송달·항소장·보정 이행·장애 경과·부대항소·불복 범위가 판정 기록이 된다. 앞서 원칙적으로 불복 한도 안에서 바꾸되 상계 주장 인정의 법정 예외를 보존한다는 전제를 받아들이므로, 남은 물음은 원판결을 바꿀 통로가 실제로 열렸는지 막혔는지 아니면 아직 확인되지 않았는지를 구별하는 일이다.
이 물음에 해당하는 원문은 민사소송법 제403조로, 문언은 다음과 같다. “제403조(부대항소) 피항소인은 항소권이 소멸된 뒤에도 변론이 종결될 때까지 부대항소를 할 수 있다.” 여기서 부대항소란 피항소인이 항소절차에서 제기하는 종속적 불복을 뜻한다. 조문이 지정하는 주체는 피항소인이며, 행위는 부대항소이고, 시간적 한계는 변론이 종결되기 전이다. 따라서 항소권이 소멸된 뒤라는 조건은 피항소인에게 부대항소의 문을 닫는 것이 아니라 열어 두는 표현으로 읽힌다.
위 문언과 이 절의 결론을 연결하면, 원판결을 바꿀 통로의 판정은 단일한 시점 문제로 환원되지 않는다. 불복 범위를 특정한 항소나 부대항소가 제도적으로 열리는지, 그리고 그 통로가 막혔는지를 각각 따져야 하기 때문이다. 항소권 소멸은 피항소인 자신의 독립적 항소권이 사라졌다는 사실을 가리킬 뿐이다. 이와 구별되는 부대항소 가능성은 이미 열린 항소절차 안에서 피항소인이 자신의 불복 범위를 제시하는 통로이므로, 두 판단 단계를 합쳐 버리면 정확한 판정이 나지 않는다.
가장 강한 반론은 부대항소가 최초 항소를 위축시킬 수 있다는 점에 겨눈다. 피항소인의 부대항소 가능성이 남아 있으면, 자기 패소 부분을 먼저 다투는 쪽에 부담이 되고 그 결과 불복 범위의 기술적 실수가 실체적 오류를 고착할 수 있다는 것이다. 이 손실은 가볍게 보이지 않는다. 다만 앞의 답의 범위에서 항소권 소멸을 부대항소 가능성의 소멸과 같다고 쓸 수는 없다. 반론이 지적한 위축 효과는 통로의 문이 막힌 경우와 열린 경우를 정확히 구별해 설시할 때만 다룰 수 있는 문제이지, 두 통로를 동일시하는 근거가 되지 않는다.
합성 장면에서 확인되는 것은 원고 A와 피고 B가 각기 다른 패소 부분에 불복하고 있다는 사실뿐이다. 이 사실만으로는 항소기간이 실제로 지났는지, 추후보완 요건이 충족되었는지, 송달에 필요한 장애가 발생했다가 해소되었는지가 확인되지 않는다. 미확정 상태는 자료 부족이며 곧바로 구제 불능이 아니다. 다만 한 가지 조건을 바꾸어 볼 수는 있다. 이 문장은 실제 사건의 추가 사실이 아니라 판정 조건을 검사하는 대조일 뿐이다.
따라서 이 절이 허용하는 결론은 원판결을 바꿀 통로의 실효·차단·미확정을 분리해 기술하는 것이다. 기간·보정 요건을 갖춘 항소 또는 적법한 부대항소로 불복 범위를 특정하면 통로가 열리고, 항소기간이 지났고 추후보완 요건도 충족되지 않으며 부대항소 등 해당 통로도 없으면 막힌다. 송달 또는 추후보완에 필요한 장애의 발생·해소가 확인되지 않으면 미확정으로 남는다.
4.12Conclusion Carried Over to the Next Section
앞 절은 항소로 원판결을 바꾸는 통로가 기간·보정 요건을 갖춘 항소나 적법한 부대항소로 불복 범위가 특정되면 작동하고, 요건이 모두 막힌 경우에는 닫히며, 장애의 발생과 해소가 확인되지 않으면 미확정으로 남는다고 정리했다. 여기서 이어지는 물음은 항소기간이 지나 피항소인의 항소권이 이미 소멸된 뒤에, 그가 자신의 불이익을 다투어 원판결의 변경을 구할 수 있는가이다. 이 물음은 피항소인의 대응 수단을 새로 발명하는 문제가 아니라, 항소권 소멸이라는 사실이 부대항소 가능성까지 함께 지우는지를 가르는 문제다. 이 절은 바로 이 구분을 다룬다.
이 물음에 답하는 법정 문언은 민사소송법 제403조다. 제403조는 제목을 부대항소로 달고, 피항소인은 항소권이 소멸된 뒤에도 변론이 종결될 때까지 부대항소를 할 수 있다고 규정한다. 이 문언이 가리키는 주체는 피항소인이며, 행위는 부대항소, 시기의 상한은 변론종결 시다. 앞쪽 조건은 피항소인의 항소권이 이미 소멸된 경우까지 열어둔다. 이 조문은 항소의 적법 요건이나 불복 범위의 확정 방법에 관한 다른 쟁점을 함께 정하는 것이 아니다. (민사소송법 제403조)
이 근거가 가리키는 것은 명확하다. 항소권 소멸은 그 사람 자신의 독립 항소를 제기할 권능이 없어진 상태를 뜻하는데, 부대항소는 상대방이 유효하게 낸 항소에 부수하여 그 항소심 절차 안에서 불복을 넣는 통로다. 그러므로 두 가지는 서로 다른 단계의 판단이다. 전자는 자신이 절차를 여는 힘의 유무이고, 후자는 이미 열린 절차 안에서 답변하는 방식의 유무다. 이 둘을 하나로 겹쳐 읽으면 법문이 명시적으로 둘러놓은 기회를 잃게 된다. 이 판단은 이 절이 허용하는 결론의 핵심이다. (민사소송법 제403조)
그럼에도 반론은 실질적인 무게를 갖는다. 부대항소가 언제든 열려 있으면, 피항소인 입장에서 굳이 먼저 항소장을 내어 자기 불복 범위를 스스로 특정할 유인이 줄어들 수 있다. 불복 범위를 둘러싼 기술적 선택의 실수가 항소심의 심리를 정해진 범위로 묶어, 본래 다툴 수 있었던 실체적 오류를 오히려 고착시킬 여지도 생긴다. 이 손실과 불편을 가볍게 볼 수 없다. 다만 그 불이익은 부대항소 제도의 부수 비용으로 다뤄질 사정이지, 피항소인에게 부대항소 가능성이 없다고 단정할 근거는 되지 못한다. 제403조의 문언은 항소권 소멸 이후에도 변론종결까지의 가능성을 열어두고 있다. (민사소송법 제403조)
합성 장면에서는 원고 A와 피고 B가 각기 다른 패소 부분에 불복하고 있어, 어느 부분이 항소심에 열려 있는지가 문제 된다. 이 장면에서 A와 B 사이에 누가 피항소인인지, 어느 쪽의 항소권이 어느 시점에 소멸되었는지, 항소장이나 부대항소장이 실제로 언제 제출되었는지는 정해지지 않았다. 다만 한쪽의 적법한 항소로 절차가 개시된 뒤, 상대방인 피항소인이 항소권 소멸 상태에 이르렀더라도 변론종결 전이라면 제403조에 따라 부대항소를 할 수 있다는 판단은 성립한다. 그 밖의 송달일이나 기산일은 이 장면의 자료로 확정되지 않았다.
이 절이 허용하는 결론은 좁고 분명하다. 피항소인은 항소권 소멸 뒤에도 변론종결까지 부대항소를 할 수 있으며, 그래서 항소권 소멸을 그의 변경 요구 가능성 전체의 소멸로 읽을 수 없다. 허용되지 않는 결론도 그만큼 분명하다. 부대항소를 제기할 수 있다는 사실만으로 불복 범위가 저절로 정해지거나, 상대방의 항소 범위를 넘는 변경이 저절로 가능해지는 것은 아니다. 부대항소가 종속적 불복인 이상 그 전제가 되는 항소가 유효히 열려 있어야 하며, 제기 시한도 변론종결 때까지로 한정된다. 이 판단을 넘어서는 실효나 집행의 문제는 이 절이 다루지 않는다. 입구에서 막힌 소가 항소심에서 열리면 누가 본안을 심리하는가?