2. The instant lawsuit shall be dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

The defendant shall pay to the plaintiff 40,391,100 won with 19% interest per annum from May 1, 2010 to the service date of the payment order of this case, and 20% interest per annum from the next day to the day of full payment.

Purport of appeal

The disposition is as follows (the defendant, on November 14, 2016, stated on the date of the first pleading in the trial at the trial of the court below, has withdrawn all arguments on the merits by asserting that the lawsuit of this case was unlawful since the lawsuit of this case was in violation of the Collegiate Agreement and thus, the purport of the defendant's appeal is examined as above).

The reasoning for this court's explanation is as follows: (1) between the first instance court and the second instance court's second instance court's second instance court's second instance court's second instance court's second instance court's judgment, "any of the plaintiffs of the above case including the defendant" is used as "all of the plaintiffs of the above case including the defendant" in the first instance court's second instance court's second instance court's second instance court's second instance court's second instance court's second instance court's second instance court's second instance court's second instance court's second instance court's second instance court's second instance court's construction of commercial building on the 4,144.3m2 of the old Jung-gu Seoul Jung-gu, Seoul and the second instance court's second instance court's second instance court's second instance court's 4,144m2.3m2, which is the land for the so-called "○○", and the plaintiff is an execution agent who entered into a general execution contract with the non-party union's first instance court's court's second instance judgment's second instance's.

2. Determination on the defense prior to the merits

A. The assertion

(1) Defendant’s defense

With respect to the Plaintiff’s filing of a claim for the payment of KRW 40,391,100 due to an increase in the area based on Articles 5 and 6 of the lease agreement of this case, the Defendant, prior to the filing of the lawsuit of this case, determined that the Defendant would not file an additional lawsuit related to the lease and purchase agreement of this case against the Plaintiff, and thus, the lawsuit of this case is in violation of the above sub-committee agreement, and thus, is unlawful.

(2) The plaintiff's assertion

In regard to this, the plaintiff's claim for the purchase price was not a subject matter of lawsuit in the prior case raised by several buyers including the defendant, and the purport of the decision of compulsory adjustment was premised on the validity of the lease contract of this case, and the unpaid amount of the purchase price was different from that of the buyers including the defendant, etc. at the time, and the agreement entered into with other buyers outside the lawsuit explicitly includes the fact that the plaintiff would pay the purchase price already occurred in the agreement entered into with the other buyers. Thus, the plaintiff asserts that the claim for the purchase price is not included

B. Determination

(1) Relevant regulations and legal principles

A compulsory conciliation decision shall have the same effect as a judicial compromise unless an objection is filed within the prescribed period (Article 34 of the Judicial Conciliation of Civil Disputes Act). On the other hand, if a judicial compromise has the same effect as a final and conclusive judgment, and if a settlement contract between the parties forms the content thereof, a settlement shall have the same effect as a judicial compromise. If a settlement takes the original effect and takes effect, the settlement shall be terminated based on the previous legal relationship. However, the scope of the original effect of a settlement, such as a judicial compromise, shall be limited to the matters on which the parties have agreed to make a mutual concession and have reached a final and conclusive decision, and it shall not take effect as to matters for which the parties have not claimed and which are understood under the premise of a settlement (see Supreme Court Decision 9Da1

Furthermore, the same effect as a final and conclusive judgment recognized for a compulsory conciliation decision extends only to matters concerning the existence of a legal relationship which is a subject matter of a lawsuit. Thus, in a case where a case is terminated by a compulsory conciliation decision, unless there are special circumstances, it should be recognized that the legal relationship has become a legal relationship which is a subject matter of a lawsuit by the content of the compulsory conciliation decision by being specified in the matters of compulsory conciliation decision or stated additionally after the indication of the claim in the written decision, unless there are special circumstances (see Supreme Court Decision 2006Da78732, Apr. 26, 2007).

In addition, the interpretation of a juristic act is clearly confirming the objective meaning which the party gave to the expression of the act in question, and it shall be reasonably interpreted according to the contents of the document regardless of the party's inner intent. In a case where the objective meaning is not clearly expressed by the party's language and text, it shall be reasonably interpreted in accordance with logical and empirical rules, and common sense of society and transaction norms so that it conforms to the ideology of social justice and equity, by comprehensively taking into account the contents of the text, the motive and circumstance leading up to the juristic act, the purpose and genuine intent of the party to the juristic act, transaction practices, etc., in a case where it is not clearly expressed by the party's internal intent (see Supreme Court Decision 2004Da6065, May 27, 2005, etc.). Such a legal principle shall be equally applied to a case where there is a dispute as to the interpretation of the adjustment clause after the parties to the lawsuit entered into a mediation (see Supreme Court Decision 2009Da31550, Sept. 10, 2009).

(2) Determination on the instant case

In light of the relevant provisions and legal principles, it is reasonable to view that the latter part of Paragraph (1) of the decision on the compulsory adjustment of the instant case is an agreement to which the Plaintiff seeks settlement payment due to the increase in the sale area, and that the effect of the agreement is also an action in the instant case for which the Plaintiff seeks settlement payment due to the increase in the sale area.

A) The latter part of Paragraph (1) of the decision on compulsory adjustment of the instant case refers to an agreement that does not bring an “mutual action related to the lease contract” in the form of an “inter-party lawsuit.” Furthermore, it is clear in the objective text that the legal relationship between the Plaintiff and the buyer, including the Defendant, who was disputing the subject matter of a lawsuit was cancelled or cancelled on the ground of deception by the Plaintiff, etc., and the return of the purchase price premised on the premise that the legal relationship between the Plaintiff and the buyer, including the Defendant, was null and void. Although the Plaintiff’s claim for the purchase price was not a subject matter of a lawsuit, the decision on compulsory adjustment of the instant case clearly stated in the latter part of Paragraph (1) of the decision that stated in Paragraph (7) of the decision that “a dispute related to the lease contract, other than the subject matter of the prior case, does not bring an action, such as a mutual lawsuit,

B) Paragraph (1) of the decision on compulsory adjustment of the instant case clearly stated that the Plaintiff is included in the party to the subordinate lawsuit agreement, which is a legal relation formed by the pertinent provision. In addition to the claim for the sale price reflecting settlement following the increase and decrease in the area at the time, there is no lawsuit expected that the Plaintiff would bring a lawsuit against the buyer, including the Defendant, regarding the lease and sale contract. If the subject matter of the subordinate lawsuit agreement formed by Paragraph (1) of the decision is excluded from the Plaintiff’s claim for the sale price, the decision with respect to the Plaintiff is bound to be an indefinite provision without subject to Paragraph (1) of the decision.

C) At the time of the instant compulsory adjustment decision, the obligation to pay the sales price to the buyer, including the Defendant, was due. In particular, on February 2010, the Plaintiff: (a) completed the store lottery procedure; and (b) confirmed the details of the sales price claim reflecting the settlement following an increase or decrease in the size; and (c) as seen earlier, around March 19, 2010, notified the buyer, including the Defendant, to pay the sales price fixed to all the buyers by April 30, 2010. However, a large number of buyers including the Defendant, including the Defendant, were denying the validity of the instant lease contract; (b) refused the payment of the sales price or the settlement payment for several years; and (c) instead, requested the return of the sales price already paid. In light of the situation where the Plaintiff and the Defendant, etc., at the time of the instant compulsory adjustment decision, it is reasonable to view that the Plaintiff’s claim against the buyer, etc., including the Defendant’s forced settlement decision or the settlement payment claim under the latter part of the instant settlement decision.

D) The instant compulsory adjustment decision provides for the distribution ratio and payment of rent for commercial buildings (Paragraph 2), extension of the term of lease (Paragraph 3), the method of settlement and allocation of management expenses (Paragraph 4), the organization of the management committee of commercial buildings, etc. (Paragraph 5), and waiver of the remainder of the claim by the buyers including the Defendant, etc. (Paragraph 7). It appears to be premised on maintaining the validity of the lease sale contract. However, in order to withdraw the position that the lease contract becomes null and void and waive the claim for the refund of the sale price already paid, the Plaintiff’s claim for the sale price acquired through the lease contract through Paragraph 1 of the instant compulsory adjustment decision, i.e., the part of the claim for the sale price acquired by the Plaintiff through the lease contract, which is, the waiver of the claim for settlement due to the unpaid balance of the sale price or increase in the area, cannot be deemed to be contrary to the remaining decision that is premised on

E) At the time of the decision of compulsory adjustment of this case, the lawsuit filed against the Plaintiff was pending in the lower court for the return of multiple sales proceeds filed by other buyers. Of these cases, the lower court rendered a judgment against the Plaintiff that the Plaintiff would return the total amount of sales proceeds received on the ground that the Plaintiff’s sales advertisement constitutes deception, etc. However, in some cases, the final decision of the lower court on the validity of the lease agreement was not yet rendered. Therefore, the lower court’s final decision on what is the validity of the lease agreement was not yet rendered. Therefore, the Plaintiff could have avoided the risk of returning the total amount of sales proceeds received in a situation where it is impossible for the Plaintiff to bring about the outcome of the lawsuit seeking the return of sales proceeds at the time of the decision of compulsory adjustment of this case, and there was a motive to yield part of the claim

F) On the other hand, on December 11, 2014, the Supreme Court reversed the judgment of the court below that the Plaintiff’s sales advertisement did not constitute deception, which stated that the Plaintiff would return the full amount of the sales price already received to the buyer on the ground of deception (Supreme Court Decision 2012Da16087). After August 2015, the Plaintiff agreed with other buyers and the Plaintiff on the same content as the decision of the instant compulsory adjustment. The agreement written at the time was added that “the unpaid amount shall be paid as soon as possible” under the latter part of paragraph (1) of the decision of the instant compulsory adjustment, which falls under the latter part of paragraph (1) of the decision of the instant compulsory adjustment. On the other hand, there is no content that the buyer, etc. should pay the unpaid amount of the sales price, or a statement that limits the object of the agreement on the compulsory adjustment.

G) Although the amount of each purchase price that the buyer did not pay at the time of the decision to enforce the instant compulsory adjustment is diverse, a considerable number of buyers paid 80% or more of the sale price excluding the total amount of the sale price or the balance or the balance, so if the Plaintiff lost in the preceding case, in light of the total sale price to be returned to 353 buyers, the total amount of the sale price settlement amount that the Plaintiff renounced due to the latter part of paragraph (1) of the decision to enforce the instant compulsory adjustment decision was very small, and from the standpoint of the Plaintiff, the latter part of paragraph (1) of the decision to waive the claim to pay the sale price to the buyer, including the Defendant, was sufficiently acceptable.

3. Conclusion

Therefore, the lawsuit of this case is instituted in violation of the non-committee agreement, and thus, it is inappropriate to dismiss it since there is no interest in the protection of rights. The judgment of the court of first instance is unfair in conclusion, and it is so revoked and it is so decided as per Disposition with the decision to dismiss the lawsuit of this case.

Judges Cho Jong-hee (Presiding Judge)