2. The plaintiff's remaining claims against the defendants are all dismissed.

3. The costs of lawsuit shall be borne by the Plaintiff.

가. 원고는 이 법원 96가합29224호 로 피고들을 상대로 임료 등 청구의 소를 제기하였는데, 위 법원은 심리결과 원고 소유의 별지 목록 기재 부동산(이하 ‘이 사건 토지’라 한다) 중 피고 1은 별지 도면(2) 표시 ㉸부분 8㎡, 피고 2는 같은 도면 표시 ㉹부분 4㎡를 옹벽을 통하여 점유하고 있고, 1996년 또는 1997년경 위 ㉸부분에 대한 ㎡ 당 연 임료는 6,864원이고, 위 ㉹부분에 대한 ㎡ 당 연 임료는 6,857.25원 상당인 것으로 나타났다.

나. 위 법원은 1997. 6. 12. 변론을 종결하였고, 1997. 6. 26. ‘ 피고 1은 위 ㉸부분 지상 옹벽을 철거하여 그 대지 8㎡를 인도하고, 1996. 7. 13.부터 위 대지의 인도시까지 연 54,912원(6,864원×8)의 비율에 의한 지연손해금을 지급하며, 피고 2는 위 ㉹부분 지상 옹벽을 철거하여 그 대지 4㎡를 인도하고, 1996. 7. 13.부터 위 대지의 인도시까지 연 27,429원(6,857.25×4)의 비율에 의한 지연손해금을 지급하라’는 판결을 선고하였고, 그 후 위 판결은 확정되었다(이하 ‘전소 확정판결’이라 한다).

[Grounds for recognition] 1 Statement B and the purport of the whole argument

2. Summary of the plaintiff's assertion

Under the premise that Defendant 1 among the land in this case owned by the Plaintiff, possessed through the retaining wall the part of 16m2 in the attached Form No. 1, but the part of 16m3,000 square meters, which was indicated by the same drawing, Defendant 2, the Plaintiff sought against the Defendants the payment of KRW 7,984,640, respectively, of the sum of the amount of unjust enrichment equivalent to the rent from January 1, 1997 to December 31, 2008, and damages for delay, and KRW 107,307, each month from January 1, 2009 to the completion date of delivery of each possessed part.

3. Determination

We examine ex officio whether the plaintiff's claim conflicts with res judicata.

A. Res judicata

(1) The final and conclusive judgment in a prior suit and the instant lawsuit are identical to the subject matter of lawsuit as the claim for return of unjust enrichment, which has already occurred on the ground that the Defendants occupied the instant land owned by the Plaintiff through the retaining wall without permission, and the claim for return of unjust enrichment

Therefore, res judicata of the final and conclusive judgment in the previous suit is the same subject matter of lawsuit, and the claim for restitution of unjust enrichment in this case.

(2) The time range of res judicata in which a final and conclusive judgment has a final and conclusive judgment takes place based on the time of the closing of argument in the fact-finding court. As such, all means of attack and defense which could have been submitted before the closing of argument in the previous trial court, namely, facts and evidential materials, cannot be submitted subsequent to whether they were either land, site, or intent or negligence, and a judgment different from the previous lawsuit cannot be sought. However, the res judicata effect is interrupted only when a new ground arises after the closing of argument (see Supreme Court Decisions 91Da24847, 24854, Oct. 27, 1992; 80Da473, May 13, 1980, etc.).

According to the result of the appraisal entrustment to the head of Seongbuk-gu Seoul Metropolitan Government Headquarters for the Korea Cadastral Survey Corporation (hereinafter “the result of appraisal entrustment”), unlike the final judgment in a previous suit, the part in which the Defendants currently occupied the land of this case through the retaining wall shall be deemed to be identical to that at the time of the closing of the final judgment in a previous suit, in light of the following circumstances acknowledged by considering the whole purport of the pleadings as a whole after the on-site inspection of this court: ① retaining wall in possession of the Defendants is a light-to-sloak wall, brick, and concrete stone embankment, ② there is no evidence to acknowledge that the Defendants constructed additional stone stone additionally after June 12, 1997, when the final judgment in a previous suit is completed.

B. Claim for restitution of unjust enrichment in excess of the area in the final and conclusive judgment in a prior suit

(1) From January 1, 1997 to December 31, 2008, under the premise that Defendant 1 occupies more than 16 square meters with respect to the instant land among the Plaintiff’s claims, the part claiming unjust enrichment of 3,992,320 won with respect to the leased area of 8 square meters, which is the excessive portion, from January 1, 2007 to December 31, 2008, the portion claiming for return of unjust enrichment of 8 square meters, which is over possession from January 1, 2009 to the completion of delivery, the portion claiming unjust enrichment of 12 square meters, which is over 16 square meters, which is over 4 square meters recognized in the final and conclusive judgment of the previous suit, should be deemed to have only the portion claiming unjust enrichment of 5,988,480 won with respect to the leased area, and the portion claiming unjust enrichment of 12 square meters with respect to the portion claiming for return of unjust enrichment of 200 square meters from the final and conclusive judgment.

(2) In relation to the claim for return of unjust enrichment in a final and conclusive judgment on a prior suit, Defendant 1 is limited to eight square meters, and as to Defendant 2, the remainder of the claim is dismissed, the part of the Plaintiff’s claim for return of unjust enrichment against the Defendants of each excess area constitutes the part against which the previous suit is lost. Therefore, the judgment inconsistent with this cannot be made in this case.

(3) Therefore, the part of the Plaintiff’s claim for return of unjust enrichment against the Defendants is without merit.

C. Claim for restitution of unjust enrichment on the area of possession in the final and conclusive judgment

(1) From January 1, 1997 to December 31, 2008, Defendant 1 filed a lawsuit concerning the instant land among the Plaintiff’s claims, and the amount of the rent equivalent to 3,92,320 won, and the damages for delay thereof, from January 1, 2009 to December 31, 208, the portion of the claim for return of unjust enrichment from January 1, 2009 to the date of completion of delivery; Defendant 2’s claim for the return of unjust enrichment from the above 8m2 to the date of completion of delivery; and Defendant 2’s claim for the return of unjust enrichment from the 2m3m2 to December 31, 2008 to the 9m2m2’s claim for the return of unjust enrichment from the 4m2’s previous judgment; thus, it is reasonable to view that there was a lack of legal interest of the Plaintiff’s new judgment of acceptance of the said land from the judgment of the lower court, which had already become final and conclusive.

(2) As seen earlier, according to the result of the appraisal of rent for the annual rent of eight square meters in 196 or 1997, which was possessed by Defendant 1, around the day of the closing of argument in the final and conclusive judgment, 54,912 won, and annual rent of 4 square meters in possession of Defendant 2,27,429 won, or the result of the appraisal of rent for the non-party to the appraiser of this court (hereinafter “the result of the appraisal of rent for the instant case”), the annual rent of 2008 square meters in possession of Defendant 1 is 643,840 won (80 won per 80,480 won per m200 square meters) and the annual rent of 208 square meters in possession of Defendant 2 is 321,920 won (per 80,480 won per m20 x 484), it appears that the Defendants occupied the portion of the annual rent for the Defendant 12,2194 (per 1294).294

However, as seen earlier, in the final and conclusive judgment around 196 or around 197, the annual rent per square meter with respect to the part occupied by Defendant 1 was 6,864 won, and the annual rent per square meter with respect to the part occupied by Defendant 2 was 6,857.25 won. According to the result of the instant judgment, the premise that the annual rent per square meter with respect to the part occupied by the Defendants is 27,720 won in around 197. As such, the final and conclusive judgment of the previous suit and the result of the instant assessment of rent is different from the basis for calculating annual rent. Therefore, it is difficult to conclude that the annual rent with respect to the portion occupied by the Defendants is 11 times or more times more (as to the annual rent per square meter around 1997, it is difficult to view that the result of the appraisal of this case was more reliable as at the time of the final and conclusive judgment as to the previous one’s annual rent.

(3) Ultimately, in order to determine whether or not the amount of the rent cited in the final and conclusive judgment of the previous suit is unreasonable due to the change of the economic situation after the closing of argument in the previous suit, it is necessary to compare the rent, officially assessed price, and actual price of the land between the Nonparty and the period from 1997 to 2008 in the report on the appraisal of rent by the appraiser.

1. As to the Plaintiff’s annual rent per 27,720 won in 197 or 80,000 won in annual rent for 11 years (the annual rent did not exceed 1.5 times in 2001, and the annual rent did not exceed 1.5 times in 2005 or 2.6 times in 207). 2. The Defendants’ annual rent for 200,000 won in 20,000 won in 20,000 won in 20,000 won in 20,000 won in 20,000 won in 20,000 won in 20,000 won in 20,000 won in 20,000 won in 20,000 won in 20,000 won in 20,000 won in 20,000 won in 20,000 won in 29,000 won in 3.7.

4. Conclusion

Therefore, the part of the Plaintiff’s claim against the Defendants for return of unjust enrichment against the occupied area of the entire lawsuit is unlawful and thus dismissed, and the remaining claims against the Defendants are dismissed in its entirety as it is without merit. It is so decided as per Disposition.

[List and drawings 1, 2 omitted]

Judges Cho Jong-sung