[소유권이전등기][집20(2)민,120]
A. In a case where “A” lawsuit was instituted, but the appeal was lodged by the first instance court after the dismissal of the appeal, and the appeal was filed by the first instance court, and the appeal was the preliminary filing of “B” lawsuit at the appellate court, the appellate court is justifiable to have rendered a judgment as the first instance court as to the new case, since the appellate court needs to judge as the first instance court as to the new case.
(b) there is no change in the basis of the claim if it is merely a difference in the method of resolution in a dispute concerning the same living facts or the same economic interest.
If there is a difference in the same living facts or the same economic interest dispute, there is no change in the basis of the claim. Therefore, in case where the ownership transfer registration is sought in accordance with the same sales contract relationship, and the claim for the refund of the down payment due to the cancellation of the contract is added, the basis of the claim can not be changed.
Article 385 of the Civil Procedure Act, Article 386 of the Civil Procedure Act, Article 235 of the Civil Procedure Act
Plaintiff
Defendant
Seoul High Court Decision 71Na25 delivered on February 24, 1972
The appeal shall be dismissed.
The costs of appeal are assessed against the defendant.
Defendant 1’s ground of appeal No. 1
According to the records, the plaintiff filed a claim for the registration of ownership transfer of the real estate at the first instance court after filing a lawsuit against the original defendant for the execution of the procedure for the registration of ownership transfer of the real estate at the first instance court, which was dismissed at the first instance court, and agreed to return the down payment paid at the time of conclusion of the contract by adding the lawsuit to the defendant as a preliminary claim to return the down payment amount of KRW 600,000 for the reason that the contract for the real estate at the appellate court was rescinded by agreement and agreed to return the down payment paid at the time of conclusion of the contract. In such a case, since the above preliminary claim for the above new lawsuit was first filed at the original court, and was first filed at the first instance court, the court below is required to judge the new one as the actual first instance court. Accordingly, the court below's decision on the request for the registration of ownership transfer of the real estate at the first instance court and the request for the delivery of the real estate at the first instance court's dismissal judgment is justified, and it is not justified in the misapprehension of legal principles as seen above.
Judgment on ground of appeal No. 2 by such agent
The purport of recognizing the modification system of a lawsuit is to ensure the rational resolution of disputes between the parties who have been requested as a lawsuit, and at the same time it is in conformity with the economy in the lawsuit. Therefore, if there is no difference in the method of resolution in the same living facts or disputes related to the same economic interest, there is no change in the foundation of the claim. The reasoning of the original judgment does not change the foundation of the claim because the original judgment seeks the implementation of the ownership transfer registration of the real estate and seeks the return of the down payment due to the cancellation of the contract (cancellation of agreement) in accordance with the same transaction relationship, and seeks the preliminary return of the down payment due to the cancellation of the contract, and it cannot be said that there is no change in the foundation of the claim. In addition, the original judgment rejecting the defendant's prior defense on the ground that the new facts or the new submission of special litigation data is not required due to the modification of this case, it is just, and there is no error of misapprehending the legal principles
Judgment on the third ground for appeal by such agent
The original judgment recognized the fact that the original judgment had rescinded the agreement on this case between the original court and the defendant on the same ground as the judgment, and if the record is examined, the fact of finding the original judgment can be accepted, and the original judgment does not contain any error in violation of the rules of evidence in the original judgment.
Therefore, the appeal is dismissed. The costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating judges.
Supreme Court Judge Yang Byung-ho (Presiding Judge)