2014Da88222 Return of the amount of deposit

1. A;

2. B

3. C.

Seoul Central District Court Decision 2013Na64860 Decided October 22, 2014

August 27, 2015

The judgment of the court below is reversed, and the case is remanded to the Seoul Central District Court Panel Division.

The grounds of appeal are examined.

1. In light of the circumstances stated in its reasoning, the lower court determined that the Plaintiff’s claim for return of the amount equivalent to KRW 90 million out of the remainder of the apartment purchase price as the agent of the network E around October 24, 2002 (hereinafter “the custody money of this case”) was not acceptable, since it was recognized that the Plaintiff B received and kept the remainder of the apartment purchase price as the agent of the network E, and the contract was concluded with the Deceased for a third party who would return it to the Plaintiff B and C, and thus, the Defendant is obligated to pay to the Plaintiff B and C the amount equivalent to 2/7 of their shares of inheritance among the custody money of this case, and the delay damages therefrom, as sought by the Plaintiff B and C. However, it cannot be deemed that the Plaintiff and the Defendant agreed to return the custody money of this case as the beneficiary of the Plaintiff, other than the Plaintiff B and C, was not acceptable.

2. However, this determination by the court below is not acceptable for the following reasons.

A. In a case where a party’s assertion is clearly excessive due to negligence or misunderstanding, or where a party’s assertion is unclear or incomplete or contradictory, the court shall actively exercise its right of explanation and provide the party with an opportunity to state his/her opinion. If a trial based on a legal point of view where the party was unable to expect at all, thereby creating an incompetence to one party, the court is unlawful as it is unlawful (see, e.g., Supreme Court Decision 2008Da45187, Dec. 11, 2008). In a case where the parties’ assertion and evidence are inconsistent or inconsistent, the court shall exercise its right of explanation and make it clear (see, e.g., Supreme Court Decision 2009Da71121, Sept. 30, 2010).

B. Review of the reasoning of the lower judgment and the record reveals the following facts.

1) The Plaintiff A is the deceased’s wife, and the Plaintiff B and C are the deceased’s children, and the Defendant is the deceased’s dead body.

2) The Plaintiffs sought the payment of the instant amount of custody without distinguishing the claim amount against the Defendant from the Plaintiff’s claim amount in the initial complaint. The Plaintiffs asserted that, on October 2002, the Defendant and the Deceased and the Defendant, on behalf of the deceased’s heir, left custody of KRW 90 million out of the balance of the apartment purchase price for the deceased’s heir, and agreed to return it to the deceased’s heir when the deceased died and the Plaintiff B substitutes.

3) However, during the continuation of the first instance trial, the plaintiffs divided the storage amount of this case into the shares of inheritance against the deceased, and the plaintiff A sought payment of the amount equivalent to 3/7 of that amount, and the amount equivalent to 2/7 of that amount. In addition, the plaintiff B and C claimed that the defendant should return the storage amount of this case to the plaintiffs according to their shares of inheritance against the deceased.

4) The first instance court agreed to return the instant amount of custody between the deceased and the Defendant after the Plaintiff’s proposal. The Defendant kept the amount of custody, and the Plaintiffs were entitled to share in the shares of inheritance.

In determining to the effect that the deceased and the defendant constitute a third party in a contract for a third party concluded between the deceased and the defendant, the judgment of accepting the plaintiffs' claims in accordance with the amended purport of the claim was declared, and the defendant appealed against this.

However, at the first instance trial, the Plaintiffs and the Defendant continued to keep the balance of the apartment purchase price between the deceased and the Defendant, and agreed to return it after the Plaintiff’s removal, and whether the remainder was received and kept in custody, and the amount of the custody amount was still controversial, and even at the first instance trial, the appellate court did not have an attack and defense over the issues. Of the Plaintiffs, as to who is the third party under a contract between the deceased and the Defendant for a third party, no attack was held.

In addition, unlike the plaintiffs' assertion that a third party in a contract concluded between the deceased and the defendant for a third party is the plaintiffs, there is no evidence that the deceased had the defendant pay the above custody money to the plaintiff A.

5) Nevertheless, the lower court determined that the Plaintiffs did not appear on the third party in a contract for a third party concluded between the Deceased and the Defendant, as described in paragraph (1).

C. In light of the above legal principles and the trial process as seen earlier, there was no explicit dispute as to who is a third party in a contract for a third party concluded between the deceased and the defendant until the original judgment, and the first instance court judged that the plaintiffs are the third party according to their shares of inheritance. However, there is conflict between the plaintiffs' assertion as to this, and the evidence submitted by them, and further, the plaintiffs' claim of this case is not the purport that the plaintiffs must have the custody money returned according to their shares of inheritance but it should be returned from the defendant. Thus, even if the court below acknowledged that the plaintiff was only a third party based on evidence, and that the plaintiff was not a third party, even if the court below acknowledged that the plaintiff's claim of this case was based on the judgment, it should have ordered the plaintiffs as to the third party in the contract for the third party or had the opportunity to modify the purport of the claim. Nevertheless, the court below did not reach this point, and it did not constitute the plaintiff's claim of this case as to the plaintiff Eul 2 and the defendant's claim of this case for the plaintiff's claim of this case.

As such, the court below erred by failing to perform its duty of explanation and thereby affecting the conclusion of the judgment. The ground of appeal pointing this out has justifiable grounds.

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Supreme Court Decision 200

Justices Lee In-bok, Counsel for the appeal

Justices Kim Yong-deok

Justices Kim Gin-young