In a case where a principal lawsuit on the basis of possessory right is filed as a future performance lawsuit based on the principal claim in preparation for the acceptance of the principal claim, and both claims are well-grounded, whether the court shall accept both the said principal lawsuit and the conjunctive counterclaim (affirmative), and whether the court may dismiss the principal lawsuit based on the possessory right on the principal claim (negative) / Whether the person who has depriveded possession has filed a lawsuit for the recovery of possession based on the possessory right, and whether the said legal principle applies to a case where the principal right holder files a separate lawsuit as a future performance lawsuit based on the principal claim in preparation for the acceptance of the lawsuit for the recovery of possession (affirmative)

With respect to a principal lawsuit based on possessory right, if the principal lawsuit is filed as a preliminary performance lawsuit based on the principal right in preparation for the acceptance of the principal claim, and both claims are reasonable, the court shall accept all the principal lawsuit based on possessory right and the preliminary counterclaim based on the principal right and shall not dismiss any principal lawsuit based on possessory right on the principal right.

Such a legal doctrine applies likewise to cases where a person who has deprived of possession files a lawsuit for the recovery of possession based on the right of possession, and the principal right holder files a separate lawsuit as a future performance suit based on the principal right in preparation for the acceptance of the lawsuit for the recovery of possession.

Articles 192, 204(1), 208, and 213 of the Civil Act

Supreme Court Decision 2019Da202795, 202801 Decided February 4, 2021 (Gong2021Sang, 493)

1. The term “the term” means “the term” means “the term” means “the term or “the term” means “the term or “the term” means

New-gu Construction Co., Ltd. (Law Firm Jeongse, Attorneys Lee Dong-mun et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2018Na2047609 decided January 15, 2019

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. For the following reasons, the lower court rejected the Plaintiff’s instant lawsuit filed as a future performance lawsuit, deeming it unlawful on the ground that it failed to meet the relevant litigation requirements.

In this case, not only the Defendant did not recover possession but also even if the Defendant obtained a favorable judgment by filing a lawsuit for the claim for recovery of possession and rendered a declaration of provisional execution, such fact alone cannot be readily determined at the present stage as to whether or not the Defendant restores possession. Moreover, widely allowing future performance lawsuits based on the principal right is not permissible as contrary to the purport of Article 208 of the Civil Act, which provides that the lawsuit for recovery of possession and the principal right do not affect each other. Ultimately, the future performance lawsuit of this case cannot be deemed as satisfying the requirements for the lawsuit.

2. However, it is difficult to accept the above determination by the lower court.

A. As to the principal lawsuit based on possessory right, if the principal right holder files a preliminary performance lawsuit based on the principal right in preparation for the acceptance of the principal claim, and both claims are well-grounded, the court shall accept both the principal lawsuit based on possessory right and the preliminary action based on the principal right and shall not reject the principal claim on the basis of possessory right (see Supreme Court Decision 2019Da202795, Feb. 4, 2021).

Such a legal doctrine applies likewise to cases where a person who has deprived of possession files a lawsuit for the recovery of possession based on the right of possession, and the principal right holder files a separate lawsuit as a future performance suit based on the principal right in preparation for the acceptance of the lawsuit for the recovery of possession.

B. Examining the reasoning and record of the lower judgment, the following facts are revealed.

(1) On May 6, 2008, the Plaintiff received a successful bid for the instant real estate held by Korea Land Trust Co., Ltd., a trust from the Nonparty and completed the registration of ownership transfer on September 1, 2016.

(2) On September 1, 2016, the Plaintiff completed the registration of ownership transfer on the instant real estate due to trust in the future of the New Real Estate Trust Co., Ltd.

(3) On November 13, 2016, the Plaintiff deprived and recovered the possession of the instant real estate possessed by the Defendant claiming the exercise of the right of retention. On November 30, 2016, the Defendant filed a lawsuit against the Plaintiff for the recovery of possession of the instant real estate on the ground of the Plaintiff’s deprivation of possession by the Seoul Central District Court Decision 2016Gahap34538, supra.

(4) On December 7, 2017, the Seoul Central District Court rendered a judgment citing the Defendant’s claim for the recovery of possession as to the above case No. 2016Gahap34538, and on December 28, 2018, the appellate court rendered a judgment citing the Defendant’s claim for the recovery of possession as to the remainder other than the part occupied by others among the instant real estate, and the above appellate judgment became final and conclusive around that time by the lower court’s judgment on May 30, 2019.

(5) Meanwhile, the Plaintiff filed the instant lawsuit with Seoul Central District Court 2016Da525854, Apr. 6, 2017, and filed an application for objection to the consolidation of the instant case and the instant case No. 2016Gahap34538, but the first instance court rejected the application. On February 9, 2018, the Plaintiff modified and expanded the claim of the instant case as a lawsuit for future performance on the condition that the Defendant’s possession by the judgment of the instant case No. 2016Gahap34538, or by the appellate court’s judgment should be restored. The amendment of the claim was made on April 19, 2018 at the fourth date for pleading of the instant first instance court.

C. Examining the above facts in light of the legal principles as seen earlier, the Defendant, who was deprived of possession, filed a lawsuit for recovery of possession based on possession rights, and the instant case, which the Plaintiff brought a separate lawsuit as a lawsuit for future performance based on the principal right in preparation for the acceptance of the lawsuit for recovery of possession rights, shall be deemed to have satisfied the requirements for the lawsuit. As such, the lower court should have deliberated and determined on the merits of the case.

Nevertheless, the court below erred by misapprehending the legal principles as to the litigation requirements of future performance and failing to exhaust all necessary deliberations, which affected the conclusion of the judgment, and the plaintiff's 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 Min You-sook (Presiding Justice)