The case holding that the court below's judgment after remand exceeded the scope of the trial

The case holding that the court below erred by exceeding the scope of the trial after remand.

Article 406 of the Civil Procedure Act

Supreme Court Decision 82Nu89 Decided June 22, 1982 (Gong1982, 709)

[Defendant-Appellee] Plaintiff 1 et al., Counsel for defendant-appellee

Attorney Han-chul, Counsel for the defendant-appellant in Daegu Metropolitan City

Daegu High Court Decision 89Na4889 delivered on February 6, 1990

Supreme Court Decision 90Meu7460 Delivered on July 10, 1990

Daegu High Court Decision 90Na3615 delivered on December 24, 1992

The part of the lower judgment against the Plaintiff regarding land shall be reversed, and the case concerning this part shall be remanded to the Daegu High Court.

The remaining appeals are dismissed.

The costs of appeal against the dismissed portion shall be assessed against the plaintiff.

Each of the grounds of appeal by the Plaintiff’s attorneys is examined together.

1. Summary of facts acknowledged by the court below on the grounds that the Plaintiff donated the site and the building on the ground of the instant rest area at Defendant Si.

(A) In accordance with the urban planning decision of the Defendant Si, the Plaintiff, who acquired the ownership of the instant land on September 14, 1983, filed an application for preliminary examination on the installation and management permission of park facilities with the purport that the Plaintiff would directly operate a building equipped with 1,200 square meters of the said site for the said rest area and 1,200 square meters of the said site for the said rest area and 19,921 square meters of forest land located within the two kinds of parks of 1,691,945 square meters in Seo-gu, Seo-gu and Sungdong-dong, Seo-dong, Seo-dong (hereinafter referred to as the “instant land”).

(B) On January 6, 1984, in order to obtain permission for the implementation of the urban planning project under Article 6 of the Urban Park Act and Article 24 of the Urban Planning Act with respect to the construction of the above rest area facilities, the Plaintiff, on the premise that the construction of the above rest area facilities should be completed at the time of completion inspection, including the 1,200 square meters of the facility site, and at the same time, shall be donated to the Defendant at the time of the completion of the construction of the facilities, and the use of the facilities should be subject to separate permission. The first time, when granting permission for the implementation of the urban planning project, such as the construction of park facilities, etc. under the above Acts and subordinate statutes, even if the land is located within the park area, there is no statutory provision that the site or facilities should be donated if it is a private land, and it would be possible to grant the permission for the implementation of the project without the premise of donation in fact. However, it was caused by the misunderstanding of the purport of the relevant Acts

(C) On January 30, 1984, the Plaintiff knew that such donation should be premised, but was able to obtain permission for installation of park facilities, and submitted a gift certificate to contribute the instant building, which is a facility to the Defendant Si, to the Defendant Si. On February 27, 1984, the Defendant Si permitted the Plaintiff to build two kinds of parks with a total floor space of 1,200 square meters, 165 square meters, 495 square meters, pursuant to Article 6(1) of the Urban Park Act and Article 2 of the Enforcement Decree of the same Act.

(D) Accordingly, the Defendant Si completed the registration of ownership transfer under the name of the Defendant Si based on the above donation certificate submitted by the Plaintiff on February 29, 1984 on the land of this case, which was based on the donation from January 30, 1984. Following the completion of the instant building, which is a park resting facility, the Plaintiff completed the registration of ownership transfer under the Plaintiff’s name on November 16, 11.16. On December 19, 12.26, the Defendant Si again submitted the registration of ownership transfer for the instant building on December 26, 1984.

(E) After that, on December 29, 1984, the Defendant Si permitted the Plaintiff to grant free use of approximately 16 years from December 19, 1984 to July 18, 2001 for the entire building facilities of this case, among the instant land owned by the Defendant Si, for about 1,200 square meters and the entire building facilities of this case, among the instant land owned by the Defendant Si, for the aforementioned reasons. The Plaintiff used 1,264 square meters after installing additional store and landscape facilities in the vicinity of the instant building as a resting facility site.

2. As to each of the grounds of appeal No. 1 (Errors) by attorney Seo Hong and Seo Jong-ri

The court below held that, in granting permission for the installation of park facilities to the plaintiff of the city of the defendant, it is against precedent, and even if it is caused by the misunderstanding of the public official concerned, since the market price of the defendant was permitted to use the site and facilities of the rest area for a long time, it cannot be viewed as deviating from the scope of discretionary power in light of administrative purposes that the rest area is established and operated within the park area for public purposes. Further, since the plaintiff also intended to operate the rest area facilities on the site of the rest area from the time when the above preliminary examination application was submitted, if only a right to use the rest area facilities is secured for a certain period of time, the site of the rest area and the facilities on the ground are donated. Thus, it cannot be viewed that the plaintiff violated the rules of evidence and did not err in the misapprehension of legal principles as to the act of donation of the site of the rest area and the facilities on the ground, and therefore, it cannot be viewed that there was any error in the contents of the legal act. In light of the evidence duly explained by the court below, the judgment below is without merit.

3. As to the ground of appeal Nos. 2 and 3 (as to the legal act against social order infringing on the right of equality) by an attorney Seo Young-man’s ground of appeal No. 3

The court below held that if a person, other than an administrative agency, installs park facilities, such as rest area in an urban park district, if the site is well-grounded, it does not contribute to the administrative agency. However, even if the market price of the defendant has been permitted to use the site and facilities of the rest area for a certain period of time in consideration of the public purpose of establishing and operating rest area in the park district, it cannot be deemed as infringing the right of equality guaranteed under the Constitution, and the plaintiff's donation cannot be deemed as a juristic act against the anti-social order. If the facts are determined by the court below, the judgment of the court below is just, and there is no error in the misapprehension of legal principles as to a juristic act against the right of equality and anti-social order, since the judgment of the court below is not proper or there is no error of law by misunderstanding the legal principles as to a juristic act against the law of law against the right of equality and anti-social order.

4. As to the ground of appeal No. 2 (as to the unfair legal act) by attorney Seo-woon et al.

The court below held that there is no evidence to acknowledge that the market price of the defendant was donated to the land and the facilities on the land of the rest area using the recognition of the plaintiff's old-age, rashness, experience, etc., and that there is no evidence to acknowledge the fact that the above recognition judgment of the court below is just and there is no error of law by violating the rules of evidence or misunderstanding the legal principles as to unfair legal acts, such as the theory of lawsuit, and there is no ground for the conclusion of the judgment below.

5. As to the ground of appeal Nos. 3 and No. 4 ( as to tort) by Attorney Seo-woon et al.

If the facts are as determined by the court below, it cannot be deemed that the plaintiff contributed to the site of the rest area and the above-ground facilities due to the intention or negligence of the public officials belonging to the defendant, and there is no error of law by misapprehending the legal principles as to tort, such as the theory of lawsuit, and therefore there is no ground for the conclusion

6. As to the grounds of appeal No. 5 (as to the misunderstanding of the scope of the trial) by attorney Seo Jong-woo

The judgment of remand in the judgment of the court below reversed the part against the defendant on the real estate (the building in this case) No. 1,200 square meters and the part against the defendant on the real estate (the building in this case) recorded in the attached list No. 1, 200 square meters among the real estate (the address in Seo-gu) in the annexed list of the judgment of the court below) and remanded this part of this case to the Daegu High Court. The defendant's remaining appeal is dismissed. The costs of appeal are assessed against the defendant. The judgment of the court below prior to the remand are assessed against the defendant. Thus, it is clear that the part of the judgment of the court below which accepted the plaintiff's claim for the implementation of the procedure of registration of cancellation of transfer registration of transfer of ownership, which was made in the name of the defendant with respect to the remaining part of 18,721 square meters of the land in this case with respect to 19,921 square meters in the land in this case. Accordingly, the object of the judgment of the court below remanded is limited to whether the plaintiff's claim for implementation of transfer registration

Nevertheless, the court below dismissed the plaintiff's appeal against the judgment of the court of first instance, which dismissed the plaintiff's claim seeking implementation of the procedure for registration of cancellation of ownership transfer registration, which was made in the name of the defendant with respect to the land of this case, 1,264m2 of which the part of the judgment of the court below prior to the remand, which accepted the plaintiff's appeal by dismissing the defendant's appeal, is the land of this case, excluding 1,264m2 of the rest area, and 1,264m2 of the land of this case, and the plaintiff's appeal against the judgment of the court of first instance which rejected the plaintiff's claim for registration of cancellation of ownership transfer registration which was made in the name of the defendant. It is clear that the judgment of the court below did not contain any error of law as to the claim that was not subject to the judgment beyond the scope of the judgment, and it is therefore obvious that such error has affected the conclusion of the judgment. Therefore, the court below's appeal pointing this out is without merit.

7. Conclusion

Therefore, the part of the judgment of the court below against the plaintiff as to land is reversed, and the case is remanded to the court below for a new trial and determination as to this part. The remaining appeal by the plaintiff (as to the building of this case) is dismissed, and the costs of appeal as to the dismissed part are assessed against the plaintiff as the losing part. It is so decided as per Disposition

Justices Yoon-young (Presiding Justice)