In a case where Gap limited partnership company and Eul, the owner of the building attached to the apartment building, without having determined whether to vest in or deliver the legal relationship of the unregistered building that is not attached to the apartment building, entered into an adjustment containing the content that "A company and Eul confirm that there is no obligation or obligation other than that provided for in this adjustment clause," and later Gap requested Eul to transfer the unregistered building to Eul and received a final decision in favor of Eul, and then Eul sought a return of unjust enrichment for using the building after the mediation became final and conclusive, the case holding that it is difficult to interpret Eul to have the effect of the adjustment even after the above adjustment was made, and it cannot be deemed that Gap did not claim the return of unjust enrichment after the mediation, on the ground that Eul did not seek the return of unjust enrichment that Eul did not seek for the return of unjust enrichment that can be exercised at the later time in the above transfer lawsuit.

Articles 105 and 741 of the Civil Act

Members Housing Construction Partnership Company

Shin Young Construction Co., Ltd and one other

Chuncheon District Court Decision 2012Na6534, 6541 Decided July 26, 2013

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

The grounds of appeal are examined.

1. Upon citing the reasoning of the first instance judgment, the lower court determined that, in light of the following circumstances, the Plaintiff could not seek the return of unjust enrichment against Defendant 2, except as provided in the conciliation protocol, against Defendant 2, who participated in the case’s transfer lawsuit against Defendant 2, and Defendant New Young Construction Co., Ltd. (hereinafter “Defendant New Construction”), which was entitled to seek the return of unjust enrichment of this case against Defendant 2 and the Intervenor joining the Defendant, and that Defendant 2 could not seek the return of unjust enrichment of the second floor of the building of this case, and that Defendant 2 could not seek the return of unjust enrichment of this case against Defendant 2 as long as it had not been two months passed since the dismissal of appeal was sentenced in the final appeal in the extradition lawsuit. The building of this case was recognized as shares against Defendant 2’s Plaintiff. At the time of the conciliation of this case, it appears that the parties would not separately claim the return of unjust enrichment against Defendant 2, as long as the Plaintiff could not seek the return of unjust enrichment.

2. However, we cannot accept the above judgment of the court below as it is.

A. In a case where the objective meaning of a juristic act is not clearly revealed through the language and text expressed by the parties, it shall be reasonably interpreted in accordance with logical and empirical rules, and the common sense of society and the transaction norms so as to conform to the ideology of social justice and equity, by comprehensively taking into account the contents of the language and text, the motive and background leading up to the juristic act, the purpose and genuine intent to be achieved by the said juristic act, the transaction practices, etc. In such a case where a dispute arises as to the interpretation of the pertinent adjustment clause after the parties to the lawsuit entered into mediation (see, e.g., Supreme Court Decisions 2007Da5700, May 10, 2007; 2013Da60432, Nov. 14, 2013).

B. Review of the reasoning of the first instance judgment partially admitted by the lower court and the record reveals the following facts.

1) The 90 household unit members of the Gangwon-gun ( Address omitted) apartment located in the Gangwon-gun was owned by the Plaintiff. The instant building, which is an accessory facility to the members apartment located in the same location, was unregistered as the third floor commercial building on the ground.

2) Defendant 2 was the representative member of the Plaintiff, who is a limited partnership company, and Nonparty 1 is the husband of the above Defendant. Defendant 2’s husband and wife managed the members apartment and the instant building while operating the Plaintiff.

3) The non-party 2 is the husband of the non-party 3, who is the birth of the defendant 2. The non-party 2 decided to recognize the share of the 30 apartment units from the non-party 1 husband and the non-party 2, and invested in the plaintiff. A dispute arose between the non-party 3 husband and the defendant 2 on September 2005 regarding the issue of rent receipt from the above 30 generation lessee.

4) On or around March 2006, Nonparty 2 filed a lawsuit against the Plaintiff seeking reimbursement of KRW 46,760,000 for the rent that the Plaintiff received with respect to the said 30 households after confirmation that he had the management right and the right to receive rent for the said 30 households. On or after September 2005, the first instance court rendered a favorable judgment on March 28, 2007. At the appellate court, Nonparty 2 and Nonparty 2 and Nonparty 3, the Intervenor, transferred their shares to the Plaintiff to Nonparty 3 and Nonparty 5, and confirmed that there were no unregistered members of the Plaintiff’s building (such as Nonparty 2’s representative members, were changed to Nonparty 3, etc.), but the Plaintiff’s status and status as the non-party 2 and the non-party 2 did not belong to the Plaintiff’s respective members of the apartment house or the non-party 4 (the Plaintiff’s ownership rights and obligations), and the Plaintiff did not belong to the non-party 2 and the non-party 3 (the non-party 2).

5) Around December 24, 2008, the representative member of the Plaintiff changed to Nonparty 3 filed a lawsuit against Defendant 2 and Nonparty 1 seeking the delivery of the instant building (Yancheon District Court Youngcheon Branch Branch Office 2008Kadan8268), and Defendant New Young Construction participated in the Defendant’s assistant construction. The appellate court of the instant case (Yancheon District Court 2010Na174) revoked the first instance judgment on January 21, 201, and rendered a favorable judgment against the Plaintiff on the ground that “it is difficult to believe that the Plaintiff completed the instant building and subsequently acquired the instant building from the Plaintiff, and that Defendant Shin Young Construction acquired the instant building from the Plaintiff,” and that the appeal (Supreme Court Decision 2011Da12996) became final and conclusive on April 28, 2011, Defendant 2 did not claim that the Plaintiff had the right to claim delivery of the instant building from the Plaintiff on June 1, 2011.

C. We examine the above facts in light of the legal principles as seen earlier.

In the instant conciliation, there was no separate provision regarding the transfer of rights to the instant building, which is an unregistered building, in the instant conciliation. After the instant conciliation, Defendant 2 did not assert that the Plaintiff’s request for transfer cannot be permitted against the instant conciliation in the India lawsuit filed by the Plaintiff for a period of no more than 3 months, and in the end, considering the circumstance that the Plaintiff received a final judgment in favor of the Plaintiff in the India lawsuit, the instant conciliation cannot be deemed that the instant building, which is the Plaintiff’s ownership, is recognized as the above Defendant’s share. Meanwhile, it is reasonable to view that Defendant 2, who transferred all the Plaintiff’s share to Nonparty 3 and retired, had no authority to occupy and use the instant building after the instant conciliation.

In addition, unless there are special circumstances, such as the establishment of a provision on the deferment of delivery, which Defendant 2 intends to deliver the instant building within a specific time near the instant building, it is difficult to interpret that the Defendant would not claim the return of the benefits of the Plaintiff, even in light of the motive, circumstance, etc. of the instant conciliation, even though the Defendant’s use of the instant building owned by the Plaintiff after the said conciliation became invalid as well as the instant conciliation provision.

Moreover, the mere fact that the Plaintiff did not seek the claim for return of unjust enrichment of this case which the Plaintiff can exercise in a separate lawsuit later cannot be deemed to have waived the right to claim return of unjust enrichment after the conciliation of this case.

In addition, as seen earlier, the parties to the instant conciliation do not have the effect of the instant conciliation to Defendant New Young Construction, rather than the interventionor, and the Plaintiff was not able to exercise the right to claim restitution of unjust enrichment after the instant conciliation was rendered against Defendant 2.

Nevertheless, the court below decided that the plaintiff did not separately claim the profits accrued from the use of the building of this case from the conciliation of this case to Defendant 2, and that the defendant New Young Construction could not claim the return of unjust enrichment on the building of this case. In such a case, the court below erred by misapprehending the interpretation and the validity scope of the conciliation clause and failing to exhaust all necessary deliberations, and thereby adversely affecting the conclusion of the judgment. The ground of appeal assigning this error is with merit.

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.

Justices Kwon Soon-il (Presiding Justice)