Busan District Court-2015-Na (22 July 2016)

Damages for delay claimed by the Plaintiff are unreasonable

Since the plaintiff's appeal is not subject to the adjudication of the appellate court because he/she has no objection, the appellate court cannot re-cite the part of the plaintiff's claim which was not appealed.

Article 30 of the National Tax Collection Act: Revocation of and reinstatement to the original state, Article 406 of the Civil Act's Right of Revocation, an objection to the distribution schedule under Article 151 of the

Supreme Court Decision 2016Da245371 Return of Fraudulent Gains

AAAAAA Corporation

Korea

Busan District Court Decision 2015Na49283 Decided July 22, 2016

December 29, 2016

Of the part of the lower judgment regarding delay damages, the part against the Defendant in excess of 5% per annum from December 16, 2014 to July 22, 2016 and 15% per annum from the next day to the date of full payment shall be reversed.

On July 22, 2016, the lawsuit on the above part was concluded upon the pronouncement of the lower judgment.

The grounds of appeal are examined.

(1) As to small cases, an appeal may be filed only when the judgment on whether the law, order, rule or disposition has been violated or the Supreme Court has rendered a decision contrary to the precedents of the Supreme Court." The Supreme Court's decision "when it is contrary to the Supreme Court's precedents" means an interpretation contrary to the Supreme Court's decision as to the interpretation of the law applicable to specific cases. It does not constitute a ground such as simple violation of the rules of evidence or misapprehension of legal principles (see, e.g., Supreme Court Decisions 2004Da6979, 6986, May 13, 2004; 2004Da43626, Oct. 28, 2004; 2004Da43626, Oct. 28, 200).

3. However, in a case where the plaintiff filed an appeal against the judgment of the first instance court which dismissed all of the claims, the remaining parts which did not have been appealed are prevented from becoming final and conclusive by the appeal, and they are transferred to the appellate court, but as long as the plaintiff does not expand the purport of appeal by the time the arguments have been concluded, the appeal court cannot re-cite the part of the plaintiff's claim which was not appealed (see, e.g., Supreme Court Decision 9Da30312, Apr. 27, 2001).

Therefore, the part of the claim of this case, which exceeds 5% per annum from December 16, 2014 to July 22, 2016, and 15% per annum from the next day to the date of full payment, did not appeal by the plaintiff, and even though the purport of appeal was not extended until the date of the closing of argument in the appellate trial, the court below accepted damages for delay in excess of the purport of appeal. Thus, the above decision of the court below is the case where the decision of the Supreme Court as seen earlier is contrary to the precedents of the Supreme Court.

Furthermore, with respect to the above damages for delay which are not subject to the appellate court's judgment, it shall be deemed that the lawsuit is terminated after the judgment of the court below is finalized.

4. Therefore, the part of the lower judgment regarding delay damages, which exceeds the purport of appeal, that is, i.e., 3,229,00 won, 5% per annum from December 16, 2014 to July 22, 2016, and 15% per annum from the next day to the date of full payment, shall be reversed, and as to this part, it is sufficient for this court to directly decide, and as such, it is so decided as per Disposition by the assent of all participating Justices on July 22, 2016.