(영문) 대법원 2017.7.11.선고 2017다207451 판결

A. Defendant B Co., Ltd. shall pay to the Plaintiff 32,00,000 won with 20% interest per annum from May 8, 2015 to September 30, 2015, and 15% interest per annum from the next day to the day of full payment.

B. The plaintiff's conjunctive claim against the defendant C is dismissed.

2. Of the total costs of litigation, the part arising between the Plaintiff and Defendant B Co., Ltd. shall be borne by the said Defendant, and the part arising between the Plaintiff and Defendant C shall

Reasons

1. We examine the grounds of appeal by Defendant B.

The court below accepted the judgment of the court of first instance, and determined that since the defendant B Co., Ltd. (hereinafter referred to as the "Defendant Co., Ltd") granted the right of representation to conclude the contract of this case to the defendant C, the contract of this case is effective against the defendant Co., Ltd. and therefore, the defendant Co.

In light of the relevant legal principles and records, the lower court did not err in its judgment by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal principles on conferment or representation.

2. The decision shall be made ex officio;

A. A. Subjective and conjunctive co-litigation is a form of litigation in which all co-litigants settle the dispute between themselves in the same legal relationship without contradiction (Article 70(2) of the Civil Procedure Act). A judgment is not allowed to render only a part of co-litigants, or an additional judgment is rendered for the remaining co-litigants (see, e.g., Supreme Court Decisions 2007Da36308, Apr. 10, 2008; 2009Da65669, Dec. 24, 2009). In addition, in a subjective and preliminary co-litigation, if one of the main co-litigants and the conjunctive co-litigants files an appeal, the final judgment on the claim against other co-litigants is interrupted, and it is subject to adjudication at the appellate court (see, e.g., Supreme Court Decision 2006Du1765, Mar. 27, 2008); and the scope of the appeal should be determined based on the need of the other co-litigants’s final judgment between the parties (see, 20135.201.

B. According to the records, even if the defendant company granted the right of representation to conclude the contract of this case to the defendant C, or did not grant the right of representation to conclude the contract of this case, as long as the contract of this case became effective in the defendant company, the plaintiff primarily sought the return of performance deposit against the defendant company, and then filed a lawsuit seeking the performance of liability against the defendant C in preparation for the fact that the contract of this case does not become effective in the defendant company. The first instance court did not determine the conjunctive claim against the defendant company by accepting the main claim against the defendant company. The defendant company appealed against the judgment of the first instance court, and the court below dismissed the defendant company's appeal without cancelling the judgment of the first instance court.

C. 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 are in a relationship in which the judgment process for each claim is inevitably mutually combined by affecting the reasoning for the judgment of one of the parties, and thus, constitutes a subjective and preliminary co-litigation requiring confirmation of the conclusion among all the parties. Thus, even if only the Defendant appealed against the judgment of the first instance, even if only the Defendant appealed against the judgment of the first instance, the part regarding the Defendant’s claims against the Defendant C should also be deemed to have been transferred to the appellate court, which is the appellate court, and thus, the lower court should render a final judgment

D. Nevertheless, the lower court dismissed Defendant Company’s appeal on the grounds that the first instance judgment, which only determined that the conjunctive claim against Defendant C was excluded from the subject matter of adjudication, was justifiable. In so doing, the lower court erred by misapprehending the legal doctrine on the subject matter of adjudication in a subjective and conjunctive co-litigation, thereby omitting judgment, thereby adversely affecting the conclusion of the judgment. Meanwhile, a subjective and conjunctive co-litigation is a form of litigation in which all co-litigants with respect to the same legal relationship are resolved simultaneously without inconsistency, and a single final judgment is to be rendered on all co-litigants’ claims (see, e.g., Supreme Court Decision 2010Da32542, Nov. 11, 2010).

3. Conclusion

The judgment of the court below is reversed, and this case is sufficient for the court to directly judge the defendant company. According to the facts of the judgment of the court of first instance cited by the court below, the main claim for the payment of the deposit against the defendant company is justified, and as long as the plaintiff's main claim is accepted, the plaintiff's conjunctive claim against the defendant C, which is subjective and preparatory relation, is not justified. Thus, the judgment of the court of first instance that different conclusions are unfair, and the plaintiff's main claim against the defendant company is accepted, and the plaintiff's conjunctive claim against the defendant C is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.