[1] Whether the scope of the appellant’s right to file an incidental appeal is limited by the appellant’s main appeal (negative)

[2] In a case where the Defendant appealed only the part of the damages for delay, and the Plaintiff expanded or modified the claim as an incidental appeal, whether the appellate court’s acceptance of the Plaintiff’s claim in excess of the cited amount of the judgment of the first instance violates the principle of prohibition of disadvantageous alteration (negative)

[3] Where a joint and several surety of a contractor under a contract for construction works has performed the repair of defects as a joint and several surety, whether the contractor's claim for the payment of the insurance money under the contract for repair

[4] The case holding that the defendant's appeal filed by the appellate court as to the part of not filing an appeal or an incidental appeal is unlawful where the appellate court rendered a modified judgment citing the whole claim extended by the plaintiff's incidental appeal

[1] A supplementary appeal is a system that, even after the right of appeal of the appellee has become extinct and it is impossible to file an independent appeal due to the extinguishment of the right of appeal by the appellee, seeks to alter the original judgment in favor of the appellee himself/herself on the premise of the existence of the appeal filed by the other party. The scope of the appellee’s right to file an incidental appeal shall not be limited by the scope in which

[2] As to the judgment of the court of first instance for which the plaintiff's claim was accepted, the defendant filed an appeal only against the damages for delay, and even if the defendant did not file an appeal against the principal portion, the plaintiff who won the entire judgment in the first instance can extend the purport of the claim as an incidental appeal pending in the appellate trial. Thus, even if the appellate court accepted the plaintiff's incidental appeal and accepted the plaintiff's claim in excess of the cited amount of the judgment of the court of first instance, there is no

[3] The warranty insurance for the performance of a defect repair shall be compensated for the damage of a contractor caused by a policyholder's failure to perform the warranty under the contract within the warranty period for the defect repair. Since it is apparent that the scope of the warranty liability of a joint guarantor under the contract for the construction work includes the obligation of the defect repair, the policyholder may directly perform the defect repair or have the joint guarantor perform the defect repair, and the insured may also request the joint guarantor for the performance of the defect repair. As such, where the policyholder or the joint guarantor performs the defect repair requested by the insured under the contract for the defect repair, he/she shall be exempted from the damage caused by the failure to perform the defect repair obligation, and as a result, there is no insurance claim based on the guarantee insurance contract.

[4] The case holding that where the appellate court rendered a modified judgment citing the whole claim of the plaintiff extended including the part of the defendant's non-appeal or incidental appeal based on the plaintiff's incidental appeal, the part of the defendant's non-appeal or incidental appeal was not subject to the appellate court's judgment, and that the defendant's appeal filed against this part

[1] Article 403 of the Civil Procedure Act / [2] Articles 403 and 415 of the Civil Procedure Act / [3] Articles 428, 448, 481, 482, and 667 of the Civil Act, Article 665 of the Commercial Act / [4] Articles 415 and 422 of the Civil Procedure Act

[1] Supreme Court Decision 94Da58261 delivered on June 30, 1995 (Gong1995Ha, 2563), Supreme Court Decision 9Meu1596, 1602 delivered on November 26, 199 (Gong2000Sang, 51) / [2] Supreme Court Decision 91Da2168 delivered on September 24, 1991 (Gong1991, 2611), Supreme Court Decision 91Da43015 delivered on December 8, 1992 (Gong1993, 413, 413), Supreme Court Decision 97Da3066 delivered on February 25, 200 (Gong200, 7747) / [209Da9835989 delivered on September 26, 205) / [300, 297Da198385 delivered on September 29, 2005.

KS Construction Co., Ltd. (Law Firm Sejong, Attorneys Osung-hwan et al., Counsel for the plaintiff-appellant)

Seoul Guarantee Insurance Co., Ltd. (Attorney Kim Young-deok, Counsel for defendant-appellee)

Seoul High Court Decision 2001Na9238 delivered on September 21, 2001

The part of the lower judgment against the Defendant ordering payment exceeding KRW 29,510,000 regarding the claim for insurance money under the second insurance contract shall be reversed, and this part of the case shall be remanded to the Seoul High Court. The Defendant’s remaining appeal shall be dismissed.

We examine the grounds of appeal.

1. Regarding ground of appeal No. 1

The incidental appeal is a system that seeks to change the original judgment in favor of the appellant on the premise that the respondent has filed an appeal, even after the right to appeal of the appellee has ceased to exist and thus it is impossible to file an independent appeal. The scope of incidental appeal by the appellant shall not be limited by the scope of appeal filed by the appellant by the principal appeal (see Supreme Court Decisions 94Da58261, Jun. 30, 1995; 9Meu1596, Nov. 26, 1999; 9Meu1602, Nov. 26, 199). In this case, the plaintiff filed a claim for indemnity payment which combines the plaintiff's claim based on the first guarantee insurance contract and the claim for the second guarantee insurance contract, and the defendant filed an appeal only for the part of the guarantee insurance contract based on the first guarantee insurance contract, and even if the appellant did not file an appeal against the principal of the second guarantee insurance contract, it cannot be accepted by the appellate court's decision 290Da1960, Nov. 26, 1998.

Therefore, this part of the ground of appeal is without merit.

2. Regarding ground of appeal No. 2

A. The judgment of the court below

According to the reasoning of the judgment below, the court below acknowledged each of the facts as stated in the judgment after compiling the evidence adopted. In light of such facts, since the obligation to repair the defects and the obligation to repair the defects borne by Rain Construction Co., Ltd. (hereinafter referred to as "Rain Construction") as joint and several sureties Co., Ltd. (hereinafter referred to as "Madin Construction") as joint and several sureties Co., Ltd. are separate obligations separate from each other, it cannot be deemed that Rain Construction performed the obligation to repair the defects guaranteed by the Defendant under the above insurance contract merely because Rain Construction performed the obligation to repair the defects due to Madin Construction's performance, and as such, it cannot be deemed that Rain Construction directly performs the obligation to repair the defects and it cannot be deemed that the damage suffered from the failure to perform the obligation to repair the defects of Radin Construction was not caused, the defendant's assertion that the Korea National Housing Corporation did not cause any damage to the

B. The judgment of this Court

However, we cannot agree with the above determination by the court below for the following reasons.

The purpose of guarantee insurance is to compensate for the loss of the insured due to the nonperformance by the policyholder. Accordingly, in order to exercise the right to claim insurance, two requirements are required, "the occurrence of the insured events," which are non-performance of the policyholder's principal contract, and "the occurrence of the insured's property loss" (see Supreme Court Decision 9Da3693 delivered on June 22, 199).

According to the evidence Nos. 1-1 through 4 and evidence Nos. 6-3 employed by the court below, Article 1 of the General Terms and Conditions of the Repair Guarantee Insurance of this case provides that "the insurer shall pay or submit to the Corporation the amount calculated by multiplying the contract amount for the repair of defects as stipulated in the contract to guarantee the repair of defects in the construction work (hereinafter referred to as "liability guarantee amount") by the contract amount for the repair of defects, and Article 18 of the General Conditions of the Contract for the Construction Work which is concluded for the contract of this case as stated in the insurance policy provides that "the contractor or joint guarantor shall pay or submit the warranty bond of this case by cash or the guarantee of each subparagraph of Article 3 (1) (including the insurance policy of this case) of this case to the Corporation until the payment of the consideration for the construction work is made after the completion inspection, and the warranty bond of this case shall be returned to the Korea National Housing Corporation within the warranty period under the provisions of paragraph (3) of this Article after receiving the request from the Corporation under the provisions of paragraph (1) of this Article 5) of this case.

According to the above provisions, the warranty insurance of this case is to indemnify the damage of the contractor incurred when the policyholder receives a request for the repair of defects within the period of warranty liability and fails to perform it in accordance with the contract of this case. Since it is apparent that the scope of warranty liability of the joint and several sureties under the contract of construction works includes the obligation of the repair of defects within the scope of warranty liability of the joint and several sureties, the policyholder may directly perform the repair of defects or have the joint and several sureties perform the repair of defects, and the insured may also request the joint and several sureties to perform the repair of defects. As such, if the policyholder or the joint and several sureties performs it upon the request of the insured for the repair of defects from the contract of construction

According to the facts acknowledged by the court below, the YY Co., Ltd., a joint and several surety of the contractor under the contract for the construction of this case, performed the repair of defects in the status of a joint and several surety after receiving a request for the repair of defects from the Korea National Housing Corporation, which is the insured. Thus, the contractor, the insured, has not suffered damage due to the policyholder's failure to repair defects due to the joint and several surety's breach of the contract. As a result

Nevertheless, the judgment of the court below which held that the defendant is liable to pay insurance money under the second guaranty insurance contract to the defendant on the ground that the liability for repairing the defects of the main debtor and the joint and several sureties is separate obligations, and the damage of the Korea National Housing Corporation was compensated due to the defect repair obligation of the joint and several sureties, is erroneous in the misapprehension of legal principles as to

3. We examine ex officio the profits of appeal.

According to the records, the plaintiff filed an appeal against the defendant by combining the claims based on the first guarantee insurance contract and the second guarantee insurance contract with the defendant, and the first instance court rendered a lawsuit for indemnity against the defendant, and the first instance court rendered a favorable judgment against the defendant for the payment of KRW 310,724,642 (the sum of KRW 281,214,642 based on the first guarantee insurance contract and KRW 29,510,000 based on the second guarantee insurance contract and KRW 29,500 based on the second guarantee insurance contract) and damages for delay. The plaintiff filed an incidental appeal only for the remainder of the claims except for the principal KRW 29,510,00 based on the second guarantee insurance contract and the second guarantee insurance contract. The plaintiff extended the claims based on the first guarantee insurance contract and the second guarantee insurance contract with the court below rejected and expanded the defendant's appeal and modified the first instance judgment and rendered a favorable judgment against the defendant, together with the amount of KRW 406,031,75 won and damages for delay.

Of the judgment of the first instance which fully accepted the plaintiff's claim, the incidental appeal was filed to expand the plaintiff's claim regarding the claim based on the second guarantee insurance contract, but the defendant did not appeal or incidental appeal regarding the principal among the claims against the second guarantee insurance contract, the principal part of the claim based on the second guarantee insurance contract in the judgment of the first instance in favor of the plaintiff was transferred to the appellate court as an appeal against the remainder of the defendant, but did not constitute the subject matter of the appellate

In addition, a modified judgment in the appellate court is the same as a judgment revoking a part of the judgment of the first instance by citing an appeal with respect to the part of which the appeal is well-grounded, and dismissing an appeal with respect to the part of which the appeal is not well-grounded. However, it is merely in accordance with a convenient request to avoid complicated contents of the order and to facilitate easy understanding of the contents of the order (see Supreme Court Decisions 80Da2566, Feb. 22, 1983; 91Da35953, Aug. 18, 1992, etc.).

In this case, the judgment of the court of appeal citing the whole claim of the plaintiff, including the extended part of the appellate court, is dismissed by the defendant's appeal, and it is identical to the judgment admitting the plaintiff's claim extended by citing the plaintiff's incidental appeal, which is limited to the defendant's appeal part subject to the judgment of the court of appeal and the incidental appeal part of the plaintiff's incidental appeal, and there is no judgment of the court of appeal 29,500,000 among the

Therefore, among the judgment of the first instance in favor of the plaintiff, the appeal filed by the defendant with respect to the part concerning the principal amount of KRW 29,500,000 among the claims based on the guarantee insurance contract of the second guarantee insurance contract of the plaintiff shall be deemed unlawful as an appeal against the part not subject to appeal (see Supreme Court Decisions 98Da5357, May 22, 1998; 2001Da63131, Feb. 5, 2002, etc.).

4. Conclusion

Therefore, the part of the judgment of the court below against the defendant ordering payment exceeding 29,510,000 won with respect to the claim for insurance money under the second insurance contract shall be reversed, and this part of the case shall be remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Cho Cho-Un (Presiding Justice)