1. Article 136(4) of the Civil Procedure Act provides, “The court shall give the parties an opportunity to state their opinions regarding legal matters which are clearly recognized as being the parties to the case.” Thus, in a case where there exist any matters of law that are clearly unreasonable due to negligence or misunderstanding or any inconsistency or uncertainty in view of the parties’ allegations from a legal point of view, the court shall actively exercise its right of explanation and give the parties an opportunity to state their opinions, and in a case where the parties neglected to state their opinions, the court is unlawful (see, e.g., Supreme Court Decision 2009Da83599, Feb. 11, 2010).

2. The record reveals the following facts.

A. From April 23, 2009, the defendant owned 84, 85, 86, 36, 87, 88, 34, 75, 76, 77, 77, 78, 79, 80, 81, 82, 83, 83, 10, and 84 "on board" part of the "on board, connected each point of 82, 31, 30, 36, 35, 34, 37, 38, 38, 48, 30, 388, 48, 30, 36, 48, 100 square meters of the attached drawings of the judgment below among the land owned by the plaintiff (hereinafter "the land in this case"). From April 24, 2009, the defendant owned the 96 square meters of the "on board" unit of above ground, and owned the land without permission.

B. Meanwhile, the co-defendant D of the court below owned 65 meters (hereinafter referred to as "second house of this case") of the above drawings in order to indicate 64, 65, 66, 66, 67, 68, 69, 70, 71, 72, 73, and 64 of the above drawings among the land of this case since January 1, 2003, and owned 65 meters of the above drawings of "in the line of ship" of the ground 3rd section of the "ground C" of this case 24, 25, 26, 27, 27, 28, 29, 30, 36, 35, 34, 33, and 24 without permission.

C. In the first instance court, the Plaintiff confused the occupied portion of the instant land with the Defendant among the instant land, and the Defendant owned and used the instant land as it owned the instant house No. 2 from April 23, 2009. Since January 1, 2003, the Plaintiff filed a claim for the removal of the instant land, the delivery of the occupied portion of land, and the return of unjust enrichment on the premise that D owned the instant land No. 1 and occupied and used the instant land. The first instance court, without any measure, accepted the Plaintiff’s claim against the Defendant and D.

D. On August 26, 2014, the Plaintiff submitted an application for correction of the purport of the claim to correct the problem of confusion on the part of possession as above on the date of the second pleading of the lower court. The phrase “the ground for correction of the purport of the claim” as stated in the “the ground for correction of the purport of the claim” refers to not only the part of possession but also the period of possession, and also the Defendant’s claim for unjust enrichment calculated on the premise that the part of the instant claim is occupied and used from January 1, 2003, and D, from April 23, 2009 to April 23, 2009, respectively.

E. The lower court did not take any measures as to the above request for correction of the purport of the claim, and closed the pleadings, and accepted all the claims against the Defendant and D, which were corrected as above.

3. Examining the above facts in light of the legal principles as seen earlier, the contents of the Plaintiff’s request for correction of the purport of the claim and the contents of “the purport of the claim after correction” are inconsistent with each other. As such, the lower court, in addition to the correction of the occupied portion of the Defendant and D, should have determined based on the result after taking measures such as giving the parties an opportunity to state their opinions by exercising the right of explanation as to whether the application for correction is not by mistake, by exercising the right of explanation.

Nevertheless, the court below, without taking such measures, accepted the Plaintiff’s claim for return of unjust enrichment against the Defendant calculated based on the erroneous occupancy period. In so doing, the court below erred by failing to perform its duty of explanation, which affected the conclusion of the judgment. The ground of appeal assigning this error is with merit.

4. Therefore, without examining the remaining grounds of appeal, the part concerning the claim for return of unjust enrichment against the defendant among the judgment below 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.

Justices Lee Sang-hoon

Justices Kim Chang-tae, Counsel for the defendant