Law Firm LLC et al., Counsel for the defendant-appellant

[Defendant-Appellant]

1. A subjective and preliminary co-litigation is a form of litigation in which all co-litigants settle the dispute between each other in the same legal relationship without contradiction (Article 70(2) of the Civil Procedure Act), and a judgment is rendered as to the claims against all co-litigants (Article 70(2) of the Civil Procedure Act), and a judgment is not allowed to render a judgment only for some co-litigants, or an additional judgment is not allowed for the remaining co-litigants. Since the litigation of the other co-litigants in a subjective and preliminary co-litigation is ineffective to all co-litigants, if an appeal is filed against any one of the main co-litigants and the conjunctive co-litigants, the part of the claim against the other co-litigants is transferred to the appellate court, and becomes subject to the appellate court. In such a case, the subject of the appellate court’s judgment shall be determined by taking into account the need to confirm the conclusion between the main and preliminary co-litigants and their other parties (see, e.g., Supreme Court Decision 2018Da251851, Nov. 9, 2018).

Meanwhile, Article 70(2) of the Civil Procedure Act provides that a judgment shall be rendered on the claims related to all co-litigants in preliminary or selective co-litigations under Article 70(1) of the same Act. As such, where a judgment is rendered only on the claims related to a part of co-litigants in such co-litigations, it constitutes a judgment with a defect other than a partial judgment, and thus, it should be contested by an appeal, and the co-litigants omitted in such judgment shall be entitled to file an appeal to correct the defects (see, e.g., Supreme Court Decision 2005Da49430, Mar. 27, 2008).

2. The record reveals the following facts.

A. The Plaintiff asserted that Defendant 1 granted the right of representation to enter into the instant sales contract to the Defendant Daiil Construction Co., Ltd. (hereinafter “Defendant Daiil Construction”), and that Defendant 1 primarily sought reimbursement of a certain amount of money by asserting the preliminary liability for damages in preparation for the case where Defendant 1 was unable to perform the obligation of ownership transfer registration when seeking performance of the instant apartment building based on the instant sales contract, and furthermore, Defendant 1 sought reimbursement of a certain amount of money by asserting that Defendant 1 would not have the effect of the instant sales contract. Furthermore, in preparation for the first instance, Defendant 1 would not have the effect of the instant sales contract, the Plaintiff sought compensation for damages arising from the acquisition money claim or the non-exclusive representation, which was given up or exempted from the premise of the establishment of the sales contract with Defendant 1.

B. The first instance court rejected Defendant 1’s claim against the primary Defendant 1 on the ground that it is difficult to recognize the granting of the power of attorney, and accepted Defendant 1’s claim against the primary Defendant 1 on the ground of the confession pursuant to Article 150 of the Civil Procedure Act. Accordingly, only the Plaintiff appealed against the primary Defendant 1.

C. The lower court deemed that the scope of the trial is limited to the scope of the Plaintiff’s objection, and only dismissed the Plaintiff’s appeal against the primary Defendant 1, and did not treat the conjunctive Defendant as a party with respect to the claim against the conjunctive Defendant 1, and did not make any determination as to the claim against the primary Defendant for the text or reason, and the original copy of the judgment was not served on the Defendant YY.

D. On November 25, 2020, after the judgment of the court below became formally final and conclusive, Defendant Heung Jong-il submitted the Written Circuit on November 25, 2020. Meanwhile, the judgment below dismissed the Plaintiff’s appeal against the Defendants, Co-Defendant 1, Co-Defendant 2 of the court below, and Co-Defendant 3 of the court below, who did not have a relationship with the Defendants as the primary and preliminary co-litigants, was final and conclusive as they were without appeal by the Plaintiff.

3. Examining the above facts in light of the legal principles as seen earlier, the Defendants’ claims against the Defendants are in a relationship in which both claims are not acceptable, or in a relationship in which the judgment process on each claim is inevitably mutually combined by affecting one’s judgment on a different claim. Accordingly, even if only the Plaintiff appealed against the primary Defendant 1 among the judgment of the court of first instance, the part on the claim against the primary Defendant 1 in the judgment of the court of first instance regarding the conjunctive Defendant 1 should also be deemed to have been subject to the adjudication by the appellate court, which is the appellate court. Therefore, the lower court should render a single final judgment as to the Defendants’ claims.

Unlike the above, the court below held that the claim portion against the conjunctive defendant 1 was determined as to the conjunctive defendant 1 and excluded from the subject matter of adjudication, and did not make any judgment as to the claim against the conjunctive defendant 1. In such a case, the court below erred by misapprehending the legal principles on the subject matter of subjective and conjunctive co-litigation, thereby omitting judgment, thereby adversely affecting the conclusion of the judgment. The ground of appeal pointing this out is with merit (the appeal period is not run as to the defendant Heung case for which the original judgment was not served, and the appeal of this case is not dismissed).

Meanwhile, subjective and preliminary co-litigation is a form of litigation in which all co-litigants settle the dispute between each other with respect to the same legal relationship in a lump sum without contradiction, and a single final judgment should be rendered with respect to all co-litigants. As such, the part of the lower judgment’s claim against Defendant 1 among the lower judgment is also reversed (see, e.g., Supreme Court Decision 2010Da32542, Nov. 11, 2010).

4. Therefore, without further proceeding to decide on the remainder of the grounds of appeal, the part concerning the claim against the Defendants is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Min You-sook

Justices Yang Tae-sung