2015Da68539 (Counterclaim) damages

A

C

[Lawsuit] Judgment

All appeals against Defendant D and C are dismissed.

The costs of appeal against Defendant D and C are assessed against the Plaintiff.

1. As to the ground of appeal against Defendant B

The lower court maintained the first instance judgment dismissing the Plaintiff’s claim against the Defendant B on the ground that the Plaintiff’s obligation to perform the procedure for changing the name of the Defendant B under the instant transfer contract was not only the obligation to be performed prior to the payment of the Plaintiff’s price, but also the Plaintiff delayed the performance of the said obligation despite the Plaintiff’s performance of the obligation to pay the price under the instant transfer contract. Accordingly, the lower court revoked the instant transfer contract and sought restitution of KRW 495,810,387 out of the price paid by the Plaintiff, and even if not, Defendant B’s obligation was impossible to perform, the lower court rejected the Plaintiff’s claim against the Defendant B on the ground that the Plaintiff’s assertion was not recognized.

However, according to the records, the court of first instance shall be deemed to have led to the confession of the fact of the above claim pursuant to Article 150 of the Civil Procedure Act. Nevertheless, since the court below maintained the conclusion of the first instance court which dismissed the claim against Defendant B on the grounds that the above claim was not recognized, all of the copies of the petition of appeal, the grounds for appeal, the briefs, and the notice on the date for pleading, etc., and dismissed the plaintiff's claim against the defendant B, and the plaintiff appealed. The court below, upon which the plaintiff appealed, delivered all of the copies of the petition of appeal, the statement of grounds for appeal, and the notice on the date for pleading, etc. to the defendant B by ordinary means, and the plaintiff alleged the facts of the above claim by making a statement on the grounds of the above statement of grounds for appeal, legal brief, etc. at the date for pleading, and the defendant B did not appear at once in attendance at the court below and did not submit any written reply and other legal brief, it maintained the conclusion of the judgment. The court below erred by misapprehending the legal principles

2. As to the grounds of appeal against Defendant D and C

The lower court determined that the Plaintiff could not rescind the transfer contract of this case on the ground that (i) Defendant D’s claim against Defendant D was a party to the transfer contract of this case, and (ii) Defendant C’s claim against Defendant C cannot be deemed as a party to the transfer contract of this case on the ground that the transfer contract of this case was delayed performance of the obligation under the transfer contract of this case on the ground that it is difficult to recognize that the Plaintiff performed, or provided, the payment obligation under the transfer contract of this case, on the ground that the transfer contract of this case was delayed performance of the obligation under the premise that Defendant D was a party to the transfer contract of this case.

Examining the reasoning of the lower judgment in light of the relevant legal principles and records, the said determination by the lower court is justifiable. In so doing, contrary to what is alleged in the grounds of appeal, the lower court did not err by misapprehending the legal doctrine on the binding force of confession and failing to exhaust all necessary deliberations, exceeding

3. Conclusion

Therefore, the part of the lower judgment regarding Defendant B is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. All appeals against Defendant D and C are dismissed, and the costs of appeal against Defendant D and C are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Note Justice Lee In-bok

Justices Kim Yong-deok

Justices Lee Dong-won