[2] Where only the Defendant appealed against the judgment below that partially accepted the Plaintiff’s claim, and only the Defendant reversed and remanded the part against the Defendant in the final appeal, whether the lower court may review the part of the judgment against the Plaintiff in the judgment below before remanding and remanded (negative)

[3] In a case where a creditor has multiple claims to achieve the same purpose, whether the interruption of extinctive prescription against another claim is effective only by one of the claims (negative in principle)

[2] If only the defendant appealed against the judgment of the court below that partially accepted the plaintiff's claim, and the court of final appeal accepted the appeal and reversed and remanded the part against the defendant among the judgment of the court of final appeal against the defendant, the above part of the judgment of final appeal was limited to this part, and the scope of the case to be remanded and the scope of the judgment of the court below after remanding shall be limited to the part against the defendant in the judgment of the court below that of the court below prior to remand, and the part against the plaintiff in the judgment of the court below prior to remand shall be decided

[3] Where a creditor holds multiple claims to achieve the same purpose, the creditor can exercise his/her right at his/her option, but one of the claims cannot be deemed to exercise another claim itself. Thus, barring any special circumstance, the interruption of extinctive prescription for other claims shall not be effective.

The part of KRW 250 million and KRW 50 million ex officio, which are pointed out by the defendant in the ground of appeal, shall be judged together.

A. Case progress

1) The Plaintiff filed a claim against the Defendant, etc. for the payment of damages amounting to KRW 500 million and damages for delay on the ground of joint tort.

2) The first instance court sentenced the Defendant to pay KRW 250 million, which is a part of the Plaintiff’s claim, and dismissed the remainder of the claim. The Defendant appealed against the part of the first instance judgment against the Defendant. The Plaintiff did not appeal against the part against which it lost.

3) The lower court before remanded the Defendant’s appeal against KRW 50 million and delay damages. Accordingly, the lower court revoked the part against the Defendant ordering the Defendant to pay more than KRW 200 million and delay damages, and dismissed the Plaintiff’s claim corresponding to the revoked part. The Defendant’s remaining appeal is dismissed.” The Plaintiff did not appeal against the above KRW 50 million and delay damages lost at the appellate court. The Defendant appealed against the part of the lower judgment prior to remand.

4) The Supreme Court accepted the Defendant’s appeal and reversed and remanded the part against the Defendant before remanding.

B. The judgment of the court below

The court below (or the court below's decision after re-delivery) rendered a judgment ordering the defendant to pay 500 million won and damages for delay at the rate of 6% per annum from January 6, 2018 to February 22, 2018, and 15% per annum from the next day to the date of full payment, and dismissed the remainder of the damages for delay, and did not separately determine the damages for delay.

C. 250 million won which the Plaintiff did not appeal

Where only one of the parties has lodged an appeal against the judgment of the court of first instance that dismissed a part of a claim, the entire claim, which was the object of the judgment of the court of first instance, shall be indivisiblely transferred to the appellate court; however, the scope of the appellate court’s adjudication shall be limited to the scope of the appellant’s objection; and the portion which is not subject to the judgment of the appellate court shall be determined simultaneously with the judgment of the appellate court and the lawsuit is terminated (see, e.g., Supreme Court Decision 2011Da1864, Jul

Examining in light of the aforementioned legal principles, the first instance court accepted the Plaintiff’s claim for damages and damages for delay, and appealed only by the Defendant. As such, the part of the Plaintiff’s remaining claims in excess of this is not subject to the judgment of the lower court before remanding, but was determined at the same time as the judgment of the lower court before remanding on August 13, 2015, and the lawsuit was terminated.

D. 50 million won for which the Plaintiff did not appeal

In principle, if only the defendant appealed against the judgment of the court below before the plaintiff's claim was partially accepted, and the appeal was accepted by the court of final appeal against the defendant, and the part against the defendant was reversed or remanded among the judgment of the court of final appeal, the above part was limited to this part, and the scope of the case to be remanded, and the scope of the judgment of the court below after remanding shall be limited to the part against the defendant before remanding. Since the judgment of the court below against the plaintiff is final and conclusive, the part against the plaintiff in the judgment of the court below before remanding, the court below cannot review it (see Supreme Court Decision 2011Da31706, Feb. 28, 201

In light of the above legal principles, the lower court prior to remand revoked the part against the Defendant ordering payment in excess of KRW 200 million and delay damages among the parts cited by the first instance court, and dismissed the Plaintiff’s claim corresponding to that part and appealed only by the Defendant. Therefore, the part of the lower judgment prior to remand, which was additionally dismissed, is not subject to the judgment of the Supreme Court, and the lawsuit was concluded upon the Supreme Court’s ruling of remand on May

E. Sub-committee

Therefore, the scope of the judgment of the court below after remand is limited to the part against the defendant of the judgment of the court below before remand, and the part already finalized as above cannot be subject to the judgment.

Nevertheless, the lower court ordered the Defendant to pay KRW 500 million and damages for delay, which are already determined and determined by including the portion of the claim that is not subject to the adjudication, thereby ordering the Defendant to pay KRW 300 million and damages for delay. Of these, the lower court’s decision ordering the payment of KRW 300 million and damages for delay exceeding the scope of the adjudication, erred by misapprehending the legal principles on the scope of this deliberation, subject matter of adjudication, scope of adjudication after remand, disposition authority, principle of prohibition of disadvantageous change, etc., which affected the conclusion of the judgment. The Defendant’s ground of appeal assigning this error is with merit. The remainder of KRW 50 million

2. Part on the ground of appeal as to extinctive prescription

A. The judgment of the court below

The lower court, on the premise that the deposit claim alleged by the Plaintiff as a cause of change after remanded the case is in progress a five-year extinctive prescription period from the date of deposit as commercial claim, determined that the extinctive prescription was interrupted at the time of filing a lawsuit, on the following grounds: (a) based on the legal doctrine that the Plaintiff’s claim is included in a judicial claim, which is a cause of interruption of extinctive prescription, when it can be deemed that the Plaintiff expressed his/her intent to exercise his/her right in a case where the Plaintiff claims the performance of the right itself or claims on the basic legal relations that occurred in connection with the interruption of the extinctive prescription period; or (b) where the Plaintiff claims on the subsequent legal relations that was formed based on such right or claims based thereon

B. Legal principles on the interruption of extinctive prescription between multiple claims

In cases where a creditor holds multiple claims in order to achieve the same purpose, a creditor may exercise his/her right at his/her option; however, one of them cannot be deemed to exercise another claim itself. Thus, barring any special circumstance, interruption of extinctive prescription for such other claims is not effective (see Supreme Court Decision 2013Da45716, Jun. 26, 2014).

Therefore, the extinctive prescription of a claim for reimbursement of expenses due to management of affairs cannot be interrupted as a lawsuit against a joint tortfeasor (see Supreme Court Decision 2001Da6145, Mar. 23, 2001). The extinctive prescription of a claim for reimbursement of expenses due to non-performance of obligation as a lawsuit for the claim for restitution of unjust enrichment cannot be interrupted (see Supreme Court Decision 2010Da81285, Feb. 10, 201). Even if a lawsuit for the claim for compensation based on subrogation is filed by an insurer, the extinctive prescription of the claim for the transfer money cannot be interrupted (see Supreme Court Decision 2013Da45716, Jun. 26, 2014).

In this case, the plaintiff filed a claim for damages due to joint tort by the defendant et al. at the court below after remanding the claim for deposit.

In order to achieve the purpose of the claim amounting to KRW 500 million of the assertion, the Plaintiff may exercise the right by choice among the claim for damages against tort and the claim for deposit. However, the Plaintiff cannot be deemed to exercise the deposit claim on the ground that the Plaintiff filed a lawsuit against the Defendant for damages, and thus, it cannot be deemed that the extinctive prescription of the Plaintiff’s claim

Nevertheless, the lower court determined that the instant claim for damages constituted a judicial claim suspending extinctive prescription of the claim for deposit claims. In so doing, the lower court erred by misapprehending the legal doctrine on interruption of extinctive prescription, thereby adversely affecting the conclusion of the judgment. The allegation contained in the grounds of appeal on this point is with merit

3. Conclusion

Therefore, without further proceeding to decide on the remainder of the grounds of appeal, the part against the defendant among the part of the judgment below against the defendant is reversed, and the part of the judgment below ordering payment of 30 million won and 6% per annum from January 6, 2018 to February 22, 2018, and 15% per annum from the next day to the day of complete payment. This part is sufficient for this court to directly decide on this part. As such, the part demanding payment of 250 million won among the lawsuits against the defendant under Article 437 of the Civil Procedure Act is decided to be self-printed, and the part demanding payment of 50 million won and delay damages therefrom is remanded to the court below by the ruling of the Supreme Court on August 13, 2015, which is remanded to the court below for further proceedings consistent with this Opinion by the assent of all participating Justices 20 million won and 15% per annum from May 12, 2016 and remanded to the court below for further proceedings consistent with this Opinion.

Justices Noh Tae-tae (Presiding Justice)