The case reversing the judgment of the court below on the ground that there was a violation of law such as non-exercise of right to

The case reversing the judgment of the court below on the ground that the rejection of the plaintiff's claim on the ground that the plaintiff, who was judged in favor of the court of first instance, was served with the documents of lawsuit by mail delivery and was not present at the date of first pleading of the appellate court, but the defendant stated in the brief to the effect that part of the plaintiff's alleged facts is confessioned at that date, and at the same time made a contradictory assertion that the plaintiff's claim is denied in whole, the appellate court should have deliberated and determined the plaintiff with an opportunity to prove the denied part of the confession by clearly explaining the purport of the defendant's argument, and should have deliberated and determined the propriety of the plaintiff's assertion, notwithstanding the fact that the plaintiff's claim was rejected on the ground that there was an error of law in the exercise of right to explanation

Articles 126 and 393 of the Civil Procedure Act

Supreme Court Decision 85Meu1985 Decided February 11, 1986 (Gong1986, 450) Supreme Court Decision 2001Da1355 Decided July 13, 2001

Plaintiff

Defendant

Jeonju District Court Decision 2001Na1983 delivered on November 7, 2001

The judgment of the court below is reversed, and the case is remanded to the Jeonju District Court Panel Division.

We examine the grounds of appeal.

According to the records and reasoning of the judgment below, the court below rendered a favorable judgment against the plaintiff on January 16, 201 as to the claim of this case for the return of unjust enrichment equivalent to the name of the above commercial building and monthly rent (500,000 won per month) on the ground that the plaintiff received a successful bid for the three-story commercial building above ( Address omitted) above from the court of first instance and acquired ownership of the above building in full around March 30, 1998, and without any title the defendant occupied and used the second floor ○○○, among the above buildings, on the ground that the plaintiff occupied and used the second floor ○○○, from the above building without any title. On March 5, 2001, the court below, which is the appellate court, rendered a favorable judgment against the plaintiff on March 15, 2001, where the copy of the defendant's petition of appeal was delivered lawfully to the plaintiff at the place of delivery, but it was impossible to serve the defendant's written statement on July 24, 2001.

However, the above measures of the court below are not acceptable.

According to the records, when examining the land cadastre and building management ledger attached to the complaint and compiled in the records, the above building itself can see that the above building is owned by the plaintiff. However, even if the defendant asserted through the application for resumption of pleadings submitted after the closing of argument in the court of first instance or the preparatory documents in the court below, the defendant also does not dispute the fact that the above commercial building is the plaintiff. However, since the defendant sublets the above commercial building to the non-party, the person who actually occupied it is the non-party, the defendant does not bear the obligation to return unjust enrichment equivalent to the monthly rent directly to the plaintiff, and even if the defendant is deemed to possess the above commercial building, the amount of the monthly rent 50,000 won which the plaintiff claimed as unjust enrichment should be objectively followed by ordering appraisal.

Therefore, if the court below, on the first date for pleading, did not appear and only the defendant's attorney present and state the briefs containing the purport of partial confession, and at the same time, made a contradictory assertion that the whole fact of the plaintiff's claim is denied, the court below should have the plaintiff give the opportunity to prove the part of confession and the part denying the plaintiff's claim by clarifying the purport of the defendant's appeal, and have the plaintiff be deliberated and decided on the legitimacy of the plaintiff's assertion.

Nevertheless, the court below did not appear on the first date for pleading and stated that the defendant's attorney denies all the plaintiff's assertion on the said date for pleading, and did not take such measures as above, but immediately close the pleading on the same day and rejected the plaintiff's claim on the ground that there is no proof of the plaintiff's assertion, and there is an error of law in exercising the right for explanation and incomplete hearing. The plaintiff's ground for appeal pointing this out has merit.

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 Lee Jae-in (Presiding Justice)