logobeta
본 영문본은 리걸엔진의 AI 번역 엔진으로 번역되었습니다. 수정이 필요한 부분이 있는 경우 피드백 부탁드립니다.
텍스트 조절
arrow
arrow
(영문) 대법원 2015.11.12.선고 2014다18407 판결
공사대금공사대금등
Cases

2014Da18407 ( principal office) Construction Costs

2014Da18414 (Counterclaim for Construction Costs, etc.)

Plaintiff (Counterclaim Defendant) Final Appeal

person

A Stock Company

Defendant (Counterclaim Plaintiff) Appellee

H Co., Ltd. (former Trade Name: B)

Judgment of remand

Supreme Court Decision 2012Da116543, 2012Da116550 Decided April 25, 2013

[Lawsuit] Judgment

The judgment below

Busan High Court Decision 2013Na3682 (Main Office), 2013Na3699 decided January 29, 2014

(Counterclaim) Judgment

Imposition of Judgment

November 12, 2015

Text

The part of the main lawsuit and counterclaim of the judgment below shall be reversed, and this part of the case shall be remanded to the Busan High Court. The remaining appeal shall be dismissed.

Reasons

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

A. 1) If there exists a seizure and collection order as to a claim, only the collection creditor may file a lawsuit for performance against the garnishee, and the debtor loses the standing to file a performance lawsuit against the claim subject to seizure. However, if the collection creditor loses the collection right due to the withdrawal, etc. of the application for the seizure and collection order during the course of the performance lawsuit by the debtor, the debtor shall recover the standing to be a party. Such circumstances should be examined and determined by the court ex officio even if the party does not assert it as the matter to be ex officio, and where the requirements for the lawsuit, such as the party’s standing, are not satisfied or such defects are cured after the closing of arguments at the fact-finding court, the court shall also consider them in the final appeal (see, e.g., Supreme Court Decisions 2007Da6362, Nov. 29, 2007; 2010Da64877, Nov. 2

According to the reasoning of the judgment of the court below, the court below rejected the claim amount of 24,148,460 won from Busan District Court 2001 to 3001, and 300 U.S. L. District Court 2013T. L. Busan District Court 2013T. 18083, the claim amount of 100,000 won and the claim amount of 41,810,669 won as the claim amount of 201 U.S. District Court 201 to 3001, and 148,460 won as the claim amount of 24,148,460 won, and 10,000 won and the claim amount of 10,000,000 won and damages for delay arising from the above claim amount of 20,000 won and the claim amount of 35,000 won and damages for delay arising from the execution of the claim amount of 91.15 days.

However, the record reveals the following facts: (a) on April 1, 2014, the date when the judgment of the court below was rendered, the document of withdrawal of the application for the seizure and collection order of the above claim to the Busan District Court; (b) on March 26, 2014, the date after the judgment of the court below was rendered, the document of cancellation and collection of the above claim attachment and collection order to the Busan District Court; and (c) on April 1, 2014, the date when L was issued to the Busan District Court on April 1, 2014, respectively.

In light of the above legal principles, the Plaintiff’s withdrawal, etc. of the claim against each of the above claims seizure and collection orders, etc. shall be deemed to have recovered the claim amount of each of the above claims seizure and collection orders, and the standing to file a lawsuit seeking the payment of damages for delay.

Therefore, among the principal lawsuit of the lower judgment, the part which dismissed the lawsuit against the Plaintiff on the ground that the Plaintiff was not a party to the lawsuit was no longer maintained. The ground of appeal assigning this error is with merit.

2) According to the records, the defendant filed a counterclaim against the plaintiff's main claim for the payment of the construction cost, along with the defense of the amount equivalent to the construction cost that the plaintiff had not been constructed. The defendant filed a counterclaim before the remanding of the case without withdrawing the aforementioned defense, and filed a claim for the amount calculated by deducting the construction cost unpaid from the sum of the construction cost and the defect repair cost. After the remanding of the case, the court below did not withdraw the above deduction and offset

Thus, if the above dismissal part of the lawsuit is reversed and remanded, and the plaintiff's claim of the lawsuit is partly accepted, the defendant's deduction and set-off should be judged prior to the counterclaim. If the deduction and set-off are accepted in whole or in part, the counterclaim claim should be accepted only for the remaining part after the deduction or set-off is extinguished. Thus, the counterclaim part should also be reversed.

B. After comprehensively taking account of the adopted evidence, the lower court acknowledged the facts as indicated in its reasoning, and determined that the result of the lower judgment’s appraisal is against the empirical rule or unreasonable, and that the result was considerably erroneous.

Examining the reasoning of the lower judgment in light of the relevant legal principles and records, the lower court’s aforementioned determination is justifiable, and contrary to what is alleged in the grounds of appeal, there were no errors by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by failing

2. We examine ex officio.

A. The lower court’s judgment prior to the remanding of the part of the Defendant’s counterclaim, which partially accepted the Defendant’s counterclaim, is final and conclusive as to the part against the Defendant’s losing part of the counterclaim, if only the part against the Plaintiff was reversed and remanded before the remanding of the final appeal. Since the scope of the judgment of the lower court after remanding is limited to the part against the Plaintiff, the lower court may not examine the part against the Defendant’s losing part after remanding of the case (see, e.g., Supreme Court Decisions 78Da1327, Nov. 14, 1978; 2014Da11376, 11383, Jun. 12, 2014). However, since the lower court’s litigation proceeding continues before remanding of the first instance court, the parties may, in principle, submit new facts and evidence, and all procedural acts permitted at that instance, such as changing the lawsuit, filing incidental appeal, and expanding claims, etc. for these reasons are inevitable (see, e.g., Supreme Court Decision 192Da1382, Dec.

On the other hand, where a legal assertion on the addition or modification of a claim by a party is legally unclear or incomplete, the court must seek tin and provide the party with an opportunity to state his/her opinion regarding the legal point of view (see, e.g., Supreme Court Decision 2014Da11376, 11383, Jun. 12, 2014).

B. When the defendant's counterclaim claim was partially accepted in the judgment of the court below before remand, only the plaintiff appealed as to the part against the plaintiff among the counterclaim, and the court of final appeal reversed the part of the defect repair cost of 72,494,636 won (the construction cost of 83,129,000 won and the construction cost of 30,502,00 won less the unpaid construction cost of 41,136,364 won) and the damages for delay which correspond to the part against the plaintiff among the counterclaims, the part against the defendant among the construction cost of the non-construction and the defect repair cost of 30,502,00 won shall be decided as the judgment of remand, and the scope of the judgment of the court below after remand is limited to 72,494,636 won and the damages for delay which exceed

However, considering the result of appraisal at the court below after remand, since a new item which was not recognized before remand was recognized as an additional construction work, it is always possible for the defendant to expand the claim to add the above new item to the purport of adding the claim, and in this case, a judgment may be rendered disadvantageous to the plaintiff beyond the scope of reversal and remanded. In addition, according to the result of appraisal at the court below before remanding to a counterclaim, the defendant has claimed 80,109,720 won in total as costs for illegal gains and defect repair equivalent to the construction cost, and damages for delay. After remanding to the court below, the court below maintained the above purport of the claim and the cause of claim at the court below's first date of pleading, and stated in the preparatory document at December 26, 2013, "if the defendant's counterclaim is recognized as above in excess of the purport of counterclaim, the defendant's claim is a partial claim, and it does not have any possibility to harm the defendant's new part of the additional construction cost as a result of appraisal after remanding the above statement at the court below.

D. Nevertheless, the court below did not take such measures as above. According to the appraisal at the court below, the defendant accepted the counterclaim claim exceeding the scope that was reversed and remanded solely on the ground that the amount exceeds KRW 80,109,720 due to the failure to perform construction and exceeds KRW 11,543,351 due to the failure to perform construction and the amount exceeds KRW 80,109,720 due to the failure to perform construction.

In this case, the court below erred by failing to perform its explanation or intellectual duty as to the scope of the appellate court's trial and the purport of the counterclaim, which received the return of reversal, which affected the conclusion of the judgment.

3. Conclusion

Therefore, the part of the judgment of the court below concerning the dismissal of the lawsuit and the counterclaim shall be reversed, and this part of the case shall be remanded to the court below for further proceedings consistent with this Opinion. The remaining appeal by the plaintiff shall be dismissed. It is so decided as per Disposition by the assent of all participating Justices.

Judges

Justices Kim Jae-young

The Chief Justice Park Jae-young

Justices Lee Dong-won

arrow