[2] In a case where Gap medical corporation, Eul corporation, and Byung corporation, which received dividends in the auction procedure for the site and building of the hospital owned by the corporation Gap, filed a lawsuit of demurrer against distribution, etc. and concluded an agreement, such as withdrawal of lawsuit and a concurrent action, as Gap corporation's representative director, based on the power of delegation prepared in the name of representative director Gap corporation's representative director, the case holding that the above agreement and the agreement are invalid as to Gap corporation, on the ground that it is recognized that the stamp image of Gap corporation's corporate seal affixed on the power of attorney was not affixed by the representative director

[3] In a case where the first instance court rejected a lawsuit on the ground that the lawsuit was unlawful in violation of the non-prosecution agreement, and only the plaintiff appealed, the case dismissing the plaintiff's claim, on the ground that the above non-agent agreement was concluded by an agent without authority, and the above lawsuit was lawful, and thus, the judgment of the first instance court did not dismiss the plaintiff's claim, and

[2] In a case where Gap medical corporation, Eul corporation, and Byung corporation, which received dividends in the auction procedure for the hospital site and building owned by the corporation Eul, filed a lawsuit of demurrer against distribution, and concluded an agreement and an additional lawsuit agreement with Eul corporation as Gap corporation's representative director based on the power of delegation prepared in the name of representative director Gap corporation's representative director, the case holding that the above agreement and the agreement were not effective as to Gap corporation, on the ground that it is recognized that the power of attorney was not affixed with the power of attorney since it was recognized that Gap corporation's representative director was affixed with the power of attorney before the power of attorney, in light of the fact that Eul had possessed the corporate seal before the power of attorney, and that the seal of the corporate seal affixed on the power of attorney was not affixed by the representative director at the time of the

[3] In a case where the first instance court rejected a lawsuit filed by the Plaintiff on the ground that the lawsuit was unlawful in violation of the partial lawsuit agreement, and only the Plaintiff appealed against it, the case affirming the Plaintiff’s claim on the ground that the above partial lawsuit agreement was concluded by an unauthorized representative, and thus, the lawsuit was lawful, and the lawsuit was not remanded to the first instance court pursuant to the main sentence of Article 418 of the Civil Procedure Act, and it was not returned to the first instance court pursuant to the main sentence of Article 418 of the Civil Procedure Act, and the first instance court directly deliberated on the merits pursuant to the proviso of Article

All costs of the lawsuit shall be borne by the plaintiff.

[Evidence] Facts without dispute, Gap evidence Nos. 1, 3 through 6, 9, 10, Eul evidence Nos. 9, 21-1 through 7, 23-2, and the purport of the whole pleadings

A. The Plaintiff is a corporation that operated a wedding hospital located in 7336, Sung-dong, Sung-dong, Sung-gu, Sung-si (hereinafter “instant hospital”), and the Defendant was entrusted by the Plaintiff with the management of the instant hospital (hereinafter “instant entrustment contract”) on June 10, 2004.

B. On November 15, 2004, the Defendant did not receive entrusted management expenses under the instant consignment contract, and on which a notary public received a promissory note amounting to KRW 2,656,617,698 from the Plaintiff, No. 883 of the Japan General Law Firm Deed (hereinafter “notarial deed of Promissory Notes”). On November 26, 2004, the Defendant applied for a compulsory auction against the land and buildings of the instant hospital owned by the Plaintiff (hereinafter “instant hospital, etc.”) on the basis of the instant promissory note No. 883 of November 26, 2004 (hereinafter “instant auction”).

C. On the other hand, on August 29, 2005, Nonparty 1, a creditor of the Plaintiff, transferred the right to collateral security (hereinafter “mortgage”) against the Plaintiff at KRW 1.55 million against the Defendant, and ② as the secured claim, the right to collateral security (hereinafter “mortgage”) as to the instant hospital, etc. at Suwon District Court, Sungwon-nam Branch, Seoul District Court, on August 19, 2004, transferred the right to collateral security (hereinafter “the right to collateral security”) at KRW 2 billion against the instant hospital, etc. at KRW 41795, and thereafter, notified the Plaintiff of the transfer, and the Defendant claimed the transfer claim at the auction procedure of this case

D. In the instant auction procedure on March 30, 2006, the Defendant received dividends of KRW 1130 million as a mortgagee based on the instant transfer claim, and KRW 2,413,320,355 as a creditor of the application and a person holding a provisional attachment based on the promissory note of this case. Nonparty 2, as a person holding a provisional attachment, was paid dividends of KRW 2,271,045,959 as a person holding a provisional attachment (hereinafter “instant dividends”).

2. Judgment on the main defense of this case

(a) Defenses of double lawsuit;

(1) The defendant's assertion

The defendant, on October 23, 2006, ordered the plaintiff's creditor's claim for the agreed amount under the agreement against the defendant on October 23, 2006, and then filed a lawsuit against the defendant seeking the payment of the full amount and return of unjust enrichment subrogated by the plaintiff, and the conciliation was concluded between the non-party 3 and the defendant. Since the res judicata effect of the conciliation protocol is limited to the plaintiff, the lawsuit of this case is unlawful because it constitutes a duplicate lawsuit.

(2) Determination

According to the purport of the evidence Nos. 16 through 20 of the evidence Nos. 16 to 20 of the above court and the purport of the whole pleadings, Nonparty 3 filed a suit against the defendant on the claim with executory power of No. 1120 of the Digital Deed No. 1120 of the Digital Deed No. 2004 with Suwon District Court Sung-nam Branch 2007 through Sungwon District Court Branch 1586, Oct. 23, 2006 with the plaintiff's order of seizure and assignment of the claim of KRW 1,171,045,959 based on the agreement of Oct. 23, 2006 against the defendant and received an order of seizure and assignment of the claim as stated in the purport of the above court on April 25, 2007. The defendant filed a suit against the defendant for return of KRW 500,000,000 from the auction procedure of this case by subrogation and subrogation of the plaintiff.

However, in case where a creditor has filed a lawsuit against a third party debtor by exercising a creditor's subrogation right, the judgment should have known that the debtor has filed a lawsuit by the creditor's subrogation right (see Supreme Court Decision 95Da945 delivered on July 11, 1995, etc.) and there is no evidence to prove that the non-party 3, on behalf of the plaintiff, knew that the plaintiff filed the lawsuit against the defendant on behalf of the plaintiff, and therefore, the defendant's argument on this issue is without merit.

(b) Defenses of the non-committee agreement;

(1) The defendant's assertion

After the Defendant’s distribution was made at the auction of this case, the Plaintiff filed a lawsuit of demurrer against the Defendant, AbC, and Nonparty 4; the Defendant filed a lawsuit of demurrer against the distribution against Nonparty 2; and Nonparty 2 filed a lawsuit of demurrer against the Plaintiff for the payment of goods against the Plaintiff; the Defendant participated independently in the lawsuit of claim for the payment of goods filed by Nonparty 2; on October 23, 2006, the Plaintiff, the Defendant, and Nonparty 2 agreed to withdraw each of the above lawsuit; on October 24, 2006, the Plaintiff recognized the above agreement with the Defendant on October 24, 2006, and the Plaintiff agreed that “No objection and civil liability arising in connection with the auction of this case is raised, and no objection and liability is assessed against the Defendant on the amount of the claim for the auction of this case and dividends and the receipt thereof.” It asserts that the lawsuit of this case is unlawful since it violated this part of the lawsuit of this case.

(2) Determination

If the authenticity of the seal imprinted on a private document is withdrawn by his/her seal, barring special circumstances, it is presumed that the act of affixing the seal will be based on the will of the person in whose name the document is prepared. Once the authenticity of the seal is presumed, the authenticity of the document is presumed to be established pursuant to Article 358 of the Civil Procedure Act. However, such presumption is broken if it is revealed that the act of affixing the seal was done by the person other than the person in whose name the document was written, or that it was made without being based on the will of the person in whose name the document was written, or against the will of the person in whose name the document was written. Furthermore, the presumption that the act of affixing the seal is based on the will of the person in whose name the document was written is actually presumed to have been actually presumed. Thus, if the person disputing the authenticity of the seal imprinted proves circumstances that the act of affixing the seal is based on the will of the person in whose name the document was written, the presumption of its authenticity is broken (see, e.g., Supreme Court Decisions 2003Da3139494.

According to the purport of Gap evidence Nos. 1 through 8 (including the paper numbers) and the whole pleadings, as to non-party 2, the defendant, etc.: (i) assigned the amount excluding the dividend of this case 2,271,045,959, to the defendant, etc.; (ii) the defendant, etc. did not have any obligation to receive the remainder of the dividends of this case to the defendant, etc. on October 23, 2006; and (iii) the plaintiff did not have any obligation to receive the dividends of this case to the defendant, etc. on behalf of the plaintiff on October 23, 2006; and (iv) the non-party 2 did not have any obligation to receive the dividends of this case; and (iv) the defendant did not have any obligation to receive the dividends of this case from the non-party 2,500,000,000 won to the defendant; and (v) the defendant did not have any obligation to receive the dividends of this case from the plaintiff 2,500,70,00,00.

However, there is no dispute between the parties that at October 2006, the proxy (No. 3; hereinafter “the proxy of this case”) consisting of the plaintiff and the representative director of the department store, and that each corporate seal of the plaintiff and the department store is affixed on the bottom of the delegation (No. 1; hereinafter “the proxy of this case”), but at the same time with the agreement of this case (No. 1) No. 2-A (5), the non-party 2 stated that “the non-party 7 and the former executive director of the department store of this case shall return all the corporate books, corporate cards and related documents kept at the same time as the agreement of this case to the non-party 5 without delay.” In light of the legal principles as seen earlier, it is recognized that the non-party 6 representative director of this case prepared and sealed the non-party 5 to the non-party 5 and the former representative director of the office of this case (No. 8) before the expiration of the delegation of this case, the plaintiff and the former representative director of this case shall not be accepted the plaintiff 2 and the other corporation.

Therefore, inasmuch as Nonparty 5 cannot be deemed to have the authority to act on behalf of the Plaintiff as to the instant agreement and the instant agreement, and there is no evidence to acknowledge that Nonparty 5 was granted the authority to act on behalf of the Plaintiff as to the instant agreement and the instant agreement, the instant agreement and the instant agreement are concluded in accordance with Nonparty 5’s act of acting on behalf of the Plaintiff, and thus, are not effective as against the Plaintiff. Thus, the Defendant’s main defense against the instant agreement based on the instant agreement is without merit.

The defendant asserts that the plaintiff confirmed the agreement in this case after the agreement in this case was withdrawn by all of the lawsuits of demurrer against the distribution filed by the plaintiff following the agreement in this case. According to the evidence Nos. 11-1, 2, and 12-1 through 4 of the evidence Nos. 11-4, the plaintiff's lawsuit of demurrer against the plaintiff against the defendant and the non-party No. 4 was all withdrawn after the agreement in this case, but it is recognized that according to the whole purport of the pleading, the plaintiff's lawsuit of demurrer against the distribution filed by the non-party No. 5 at the time was voluntarily appointed a legal representative and voluntarily withdrawn after the plaintiff was appointed without notifying the plaintiff. This circumstance alone does not deem that the plaintiff ratified the agreement in this case

C. Whether the judgment on the merits is possible

Where a judgment of the first instance, which has dismissed a lawsuit on account of its illegality, is revoked, the court of appeals shall remand the case to the first instance court: Provided, That where the first instance has examined the case to the extent of being able to render a judgment on the merits of the case, or where the parties have consented thereto, the court of appeals may render a judgment on the merits directly (Article 41

In the case of this case, the first instance court rendered a judgment dismissing the lawsuit of this case on the ground that it is unlawful, but as seen above, the first instance court's judgment should be revoked since the lawsuit of this case is legitimate.

Therefore, in principle, the instant case should be remanded to the first instance court in accordance with the main sentence of Article 418 of the Civil Procedure Act. However, according to the records, it is recognized that the first instance court was examined to the extent that it can render a judgment on the merits of the case, so the first instance court shall render a judgment on the merits directly in accordance with the proviso of

3. Judgment on the plaintiff's claim

A. The plaintiff's assertion

① In relation to the consignment management expenses pursuant to the instant consignment contract, as the patient’s actual operation beds of the instant hospital reduces to 1/3 or more, the monthly management service expenses shall be reduced to KRW 120 million and KRW 40 million and all claims asserted by the Defendant cannot be deemed to have been recognized. As such, the claims based on the instant promissory note do not exist in excess of KRW 1.25 billion, and the instant transfer claim also does not exist in excess of KRW 80 million, such as the overlapping of some claims.

Therefore, the Defendant is obligated to pay to the Plaintiff KRW 1.30 million (= KRW 1.130 million + KRW 2,413,320,355 + KRW 1.25 million + KRW 2,413,320,355), which was unfairly paid to the Plaintiff more than KRW 2,213,320,355, which was partially KRW 1,876,222,555, and damages for delay.

B. Determination

According to the purport of Gap evidence Nos. 6, 9, and 21-2, 23-2, and 26 of the loan No. 1 and the whole pleadings, the non-party 7, who was the president of the plaintiff, on Nov. 15, 2004, issued and delivered promissory notes representing the plaintiff 2,656,617,698, and made them up for a notarial deed which is executed and accepted. The non-party 7, on Dec. 20, 2004, it is difficult to recognize that the non-party 1's above 50 million won was 80,000,000 won, 31,76,670, 147, 150, 2978, 80,000,000 won of loan No. 1 and 506,000,000 won of loan No. 1 and 506,000 won of loan No. 1 and 506,00.7.

4. Conclusion

(a) Whether a judgment of dismissal of a claim can be rendered;

As seen above, the lawsuit of this case is lawful, and the plaintiff's claim shall be dismissed as it is without merit. The judgment of the court of first instance dismissed the lawsuit of this case on the ground that it is unlawful, and only the plaintiff appealed.

In this case, there is a view that the appellate court should dismiss the appeal in accordance with the principle of prohibition of disadvantageous alteration derived from the principle of prohibition of disposition right under Article 203 of the Civil Procedure Act.

① However, in cases falling under the proviso of Article 418 of the Civil Procedure Act, a judgment for appellant may be rendered, but it is not possible to dismiss the judgment. ② If the original judgment considers the principle of prohibition of disadvantageous change to appellant so that it can not take advantage of the substantive legal status recognized by the original judgment, this principle does not apply in cases where the original judgment is a lawsuit. ③ If the plaintiff appealed from the original judgment meets the requirements for litigation, the purport of the appeal is cancelled and the judgment on the merits is different. Thus, if the appellate court accepted it and cancelled the first instance judgment, the purport of the appeal is accepted. Next, even if the appellate court determines the dismissal of the judgment upon meeting the requirements under the proviso of Article 418 of the Civil Procedure Act, it is only the result of the determination on the substance of the appeal, and it is not reasonable to change the first instance judgment to the plaintiff's disadvantage beyond the scope of the plaintiff's application. ④ If the appellate court reverses the first instance judgment and remands the case to the first instance court, the first instance court's judgment can be dismissed as a matter, and it cannot be justified if it does not agree with the first instance judgment.

B. Conclusion of this case

Therefore, since the judgment of the court of first instance which rejected the lawsuit of this case is lawful, the part of the plaintiff's appeal against it is accepted, and the judgment of the court of first instance is revoked, and the plaintiff's claim is dismissed. It is so decided as

Judges Lee Ki-taik (Presiding Judge)