[부당이득금반환][집15(2)민,146]
In the case of a failure to exercise the right of explanation on the purpose of changing the cause of the claim;
The plaintiff asserted that "the defendant is in an illegal possession of this site" as the cause of the plaintiff's claim in the plaintiff's complaint that "the plaintiff claimed against the defendants that he purchased or delivered this site, but the plaintiff refused to comply with this claim." Thus, the plaintiff argued that "the defendants shall pay 600 f.s. dollars in accordance with customary practice as unjust enrichment," and then changed the claim based on the special agreement, claiming that there was a special agreement on unjust enrichment, the cause of the claim. In this case, the plaintiff's land is owned by the plaintiff, and it is obvious that the defendant's possession of this site is not a possession by legitimate title, the court below should issue a further statement as to whether the purpose of the change in the cause of the plaintiff's claim for unjust enrichment is exchanged or selective authorization.
Article 126 of the Civil Procedure Act, Article 235 of the Civil Procedure Act
Plaintiff
Defendant 1 and four others
Daejeon District Court Decision 66Na381 delivered on March 8, 1967
We reverse the original judgment.
This case is remanded to Daejeon District Court Panel Division.
(1) As to the first and second grounds for appeal by the Plaintiff’s attorney, the case is examined;
According to the judgment of the court below, the court below revoked the selection of Defendant 1 from the court of first instance as the appointed party, and it is just that the court below proceeded with the procedure, and it cannot be found that there is any defect in the requirements as co-litigation. Thus, even if it is assumed that there is an error in the permission of the appointed party in the court of first instance for the same illegality as that in the court of first instance, even if it is assumed that the court of first instance declared the court of first instance without notifying the plaintiff of the date of sentencing in the court of first instance, such as family litigation, even if it is assumed that the plaintiff appealed to the above judgment of the court of first instance and the court of first instance rendered a judgment in accordance with the legitimate procedure, it is also groundless to discuss the above procedural illegality in the court of first instance.
(2) We examine the fourth ground for appeal.
According to the judgment of the court below, the court below found that the land of this case was owned by the plaintiff and the defendants owned each building from June 25, 196 to the part of this case as alleged by the plaintiff, and therefore, it was occupied and used, and that the plaintiff and the defendants signed a contract on February 4, 1966 or February 5, 196 to sell the land owned by the plaintiff individually in possession in 155 won per square, respectively. The defendants paid the down payment to the down payment, but the plaintiff cancelled the above contract on March 8, 1966. The court below rejected the plaintiff's claim for the return of unjust enrichment based on the plaintiff's special agreement, which was based on the premise that the plaintiff prepared and delivered the plaintiff (Evidence 6.7) to the plaintiff, or the defendants did not consent to the above contents, and that there was no agreement between the plaintiff and the defendant on each of the above contents, or that the plaintiff delegated the non-party with the above preparation.
However, the court below acknowledged that the land in this case was owned by the plaintiff, and it is clear that the defendants own the building on the plaintiff's own site, and according to the records, the defendants denied the plaintiff's ownership on the land in this case, and cannot peep a trace of asserting that the defendants occupy the building site in this case by any title. According to the records, the plaintiff's claim is a cause of action in the soar area, and "the defendants are illegally occupying the building site," and the plaintiff requested to purchase or deliver the building site in this case against the defendants, but he did not comply with the above plaintiff's claim, so the plaintiff did not comply with the above request. Thus, the court below did not err in the misapprehension of the court below's judgment on the ground that there was a special agreement on unjust enrichment in each form as alleged above by the plaintiff, and it did not err in the misapprehension of the plaintiff's right to claim the return of unjust enrichment, and therefore, the court below did not err in the misapprehension of the plaintiff's right to claim the return of unjust enrichment.
Therefore, it is so decided as per Disposition with the assent of all participating judges.
Supreme Court Judge Lee Young-su (Presiding Judge) (Presiding Judge) and Lee Dong-dong Gyeong-dong