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1. The judgment of the court of first instance is modified as follows.
All of the plaintiff's claims against the defendants are dismissed.
2...
Reasons
1. Determination of whether the form of this Court’s consolidation of the scope of adjudication is either selective consolidation or preliminary consolidation shall be based on the nature of the motion, not the intent of the parties, and the scope of adjudication in the appellate trial shall be based on such nature of the motion.
Therefore, in a case where both substantially selective consolidation claims are filed in the order of preliminary priority, and the court of first instance dismissed the main claim and rendered a judgment that accepted only the conjunctive claim, and only the defendant filed an appeal, the appellate court shall determine all the two claims as the subject of the trial.
(See Supreme Court Decision 2013Da96868 Decided May 29, 2014). In this case, the Plaintiff filed a claim for damages against the Defendants based on ① a claim for restitution of unjust enrichment under the Civil Act, ② a conjunctive claim for damages arising from a tort under the Civil Act, and Article 401 of the Commercial Act.
In this regard, the first instance court dismissed the plaintiff's primary claim against the defendants, and accepted the claim for damages based on Article 401 of the Commercial Code among the conjunctive claims.
However, each of the above claims may be accepted, regardless of whether or not it is possible to accept other claims, and regardless of its name, may substantially be compatible with and may be selectively joined.
However, it is only the primary preliminary relationship in the order of judgment by the plaintiff's will.
Therefore, even though the defendants appealed against the judgment of the court of first instance, the entire claim is subject to the judgment of this court.
Under the following, each of the above claims shall be determined on the premise that it is a selective consolidation relationship.
2. Basic facts
A. On May 19, 2008, the Plaintiff issued one promissory note of KRW 30,000,000 issued by D Co., Ltd. on May 19, 200 to Defendant C, and KRW 27,000,000.