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(영문) 대법원 2014.12.11 2014다35280

분양대금반환 등

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All appeals are dismissed.

The costs of appeal are assessed against the plaintiff (Counterclaim defendant).

Reasons

We examine the grounds of appeal.

1. The appeal against the Defendant (Counterclaim Plaintiff)’s development of the preferred industry (hereinafter “Defendant’s development of the preferred industry”).

A. As to the ground of appeal No. 1, the court's exercise of the right to ask for a vindication is inconsistent with the allegations of the parties, or there is any incomplete or unclear part thereof, and demands the submission of evidence as to the facts of dispute by pointing this out, and urgings the submission of evidence as to the facts of dispute, which are not alleged by the parties. The acts of soliciting the submission of evidence by suggesting the requirements of legal effect or independent means of attack and defense, etc. which are not alleged by the parties,

(See Supreme Court Decision 2011Da60759 Decided July 11, 2013, and Supreme Court Decision 91Da35106 Decided June 9, 1992, etc.). Accordingly, Plaintiff-Counterclaim Defendant (hereinafter “Plaintiff”) is limited to Plaintiff-Counterclaim Defendant.

This part of the grounds of appeal purporting that the court below has a duty to enforce the right of explanation and arrange the cause of the claim in order to avoid a subsequent occurrence of res judicata problem, is not acceptable. (b) The court below rejected the grounds of appeal on the remaining grounds of the judgment of the court of first instance, citing the reasons of the judgment, by falsely or exaggerated advertising or notifying the plaintiffs with respect to the time when the development of the defendant's prior claim was commenced on the second outer circulation road, central commercial area and ecological city development, etc. Furthermore, the court below rejected the plaintiffs' assertion on the conjunctive claim added at the court below. In other words, the development of the defendant's prior claim (i.e., the defendant's prior claim), the extension of 48 national highways, the extension of the development of the second outer circulation road, the extension of the second outer circulation road, the construction of the largest commercial district in the second long circulation city, the development of cultural facilities and various cultural facilities, large charnel houses and garbage treatment facilities (construction of domestic waste facilities, etc.) within the site of the lake park.