부당이득금
1. Revocation of the first instance judgment.
2. The litigation of this case shall be dismissed.
3. The total cost of the litigation for retrial.
1. The reasoning of the court’s explanation concerning this case is as follows: (a) the pertinent part of the judgment of the first instance is modified as stated in the following 2; and (b) it is identical to the reasoning of the judgment of the first instance except to supplement or add the judgment as stated in the following 3. Therefore, it is acceptable in accordance with the main sentence of Article 420
2. Revised parts
(a) to revise the Seoul High Court Decision 14Na8778 above, 2 4 below, “the final and conclusive first instance judgment”;
B. The following is added to the 3rd 14th 14th :
A. When an appellate court rendered a judgment on the merits of a case at the appellate court, it is not possible to institute a lawsuit on the merits of the judgment of the first instance. As such, a lawsuit on a retrial filed in the first instance court against the judgment of the first instance, which is not the appellate court judgment, is the subject of a judgment which is not the subject of a retrial, and thus, it cannot be deemed an unlawful lawsuit which lacks the requirements for a retrial and merely violates the jurisdiction of retrial. However, even if the chief of the appellate court indicated the judgment of the first instance by a judgment on retrial, where the grounds for retrial alleged in the grounds for a retrial are deemed to be the subject of an appellate judgment (the same shall apply to cases where the grounds for retrial are common to the appellate court and the judgment of the first instance), such
to transfer to the appellate court which is the competent court for retrial, not to dismiss it.
(see, e.g., Supreme Court Order 94Ma2513, Jun. 195). However, in a case where the first instance court did not take such a measure and tried and subsequently dismissed the lawsuit for retrial, and where the case was legally pending in the appellate court due to an appeal of the plaintiff for retrial, the appellate court shall revoke the first instance judgment on the grounds of violation of the exclusive jurisdiction.