In a case where, although the principal lawsuit asserted the fact of the deposit for repayment and submitted the deposit document as evidence, the counterclaim was raised and then the counterclaim was not used as a defense concerning the counterclaim or there was no defense of the deposit for repayment, whether the court has the obligation to explain whether to invoke it (affirmative)

If the plaintiff asserted the fact of deposit for repayment in the preparatory document stated on the date of pleading before the institution of the counter-action and submitted the deposit document as evidence, the court shall examine whether the above claim is invoked as a defense concerning the counter-action after the institution of the counter-action or as a defense concerning the deposit for repayment in the counter-action, even though there is no objection to the counter-action, the court shall examine whether the statement of deposit for repayment in the principal lawsuit is invoked as a defense concerning the counter-

Article 126 of the Civil Procedure Act

Supreme Court Decision 67Da1742 delivered on September 26, 1967 (No. 15 ③No. 161) 80Da692,693 delivered on June 24, 1980 (Gong1980, 12960) (Gong1577)

United States Forest Keeping Steering Committee

Defendant (Counterclaim Plaintiff)

Busan High Court Decision 91Na14321, 91Na14338 delivered on July 15, 1992

The part of the lower judgment against the Plaintiff (Counterclaim Defendant) regarding the counterclaim shall be reversed, and that part of the case shall be remanded to the Busan High Court.

The remaining appeals by the Plaintiff (Counterclaim Defendant) are dismissed.

The costs of appeal to the Supreme Court are assessed against the plaintiff (Counterclaim defendant).

As to the ground of appeal by the Plaintiff (Counterclaim Defendant)

1. Based on adopted evidence, the court below recognized that the defendant merely indicated the name of the tenant on the lease contract as the defendant in order to secure the guarantee of the loan claim against the non-party, and that the actual tenant on the lease contract is not sub-lease to the non-party as the lessee of the above lease contract. Such fact-finding is just and it is not erroneous in the rules of evidence against the rules of evidence as alleged by

2. On January 10, 1989, the lower court acknowledged that the Plaintiff deposited 5.8 million won as the recipient of the Defendant’s deposited goods with the Busan District Court, but ordered the Plaintiff to pay 5.8 million won of the lease deposit and its delay damages to the Defendant, although it acknowledged that the Plaintiff deposited 5.8 million won of the lease deposit to the public official deposited with the Dong branch of the Busan District Court. This seems to be due to the absence

However, according to the records, the plaintiff asserted that he deposited the above repayment on September 13, 1990, which was stated on the fifth date for pleading of the court of first instance, prior to the filing of a counterclaim, and submitted the deposit certificate (Evidence A A 3) as evidence. Nevertheless, it is clear that the above claim has not been invoked as a defense regarding the counterclaim or specially changed the deposit statement in the counterclaim after the counterclaim was filed.

As such, the plaintiff did not clearly state the grounds for the deposit for repayment as a pleading against the counterclaim by the defendant with respect to the lease deposit amount of 5.8 million won for which the plaintiff's obligation to pay was recognized by the counterclaim by the defendant, but the plaintiff asserted the above deposit for repayment of 5.8 million won as the pleading in the principal lawsuit, and submitted the deposit document as evidence. As such, the court below should have examined whether the deposit for repayment in the principal lawsuit is invoked as a defense against the counterclaim by exercising the right to explanation and examined the above point (see Supreme Court Decision 67Da1742 delivered on September 26, 1967). The argument points out this issue has merit.

For the above reasons, the part of the judgment of the court below against the plaintiff as to the counterclaim shall be reversed, and that part of the case shall be remanded to the court below, and the remaining appeal by the plaintiff shall be dismissed. The costs of appeal by the dismissed part shall be assessed against the losing party.

Justices Yoon Young-young (Presiding Justice)