If the change of action is not clear, the court's duty of explanation

The issue of whether a change in a lawsuit is exchanged or additional is basically based on the interpretation of the intention of the parties. Therefore, in a case where it is unclear in the form of a change due to the assertion of a new cause of claim without clearly expressing that the party withdraws the previous claim, the court of fact is obliged to clarify what the purpose of the change is, i.e., exchange price or additional authorization as a tin.

Articles 126 and 235 of the Civil Procedure Act

[Plaintiff-Appellant] Plaintiff 1 and 15 others (Law Firm Han, Attorneys Lee Dong-young et al., Counsel for plaintiff-appellant)

Plaintiff 1 et al., Counsel for the defendant-appellant-appellee

Defendant 1 and one other

Seoul High Court Decision 92Na64622 delivered on December 15, 1993

From May 28, 1981 to September 30, 1992, the part concerning the claim for the payment of 10,000 won from May 28, 1981 to September 30, 1992 with an annual rate of 5% from the next day to the next day, the part concerning the claim for payment with an annual rate of 1,875,000 won from September 25, 1982 to September 30, 1992; the part concerning the claim for payment with an annual rate of 25% from the next day to the next day to the next day; the part concerning the claim for payment with an annual rate of 1,875,000 won from September 25, 1982 to the next day; the part concerning the claim for payment with an annual rate of 1,250,000 won from September 25, 1982 to the next day; and the part concerning the plaintiff 2 with an annual rate of 90.5% from the next day to nine percent to the same.

The plaintiffs' grounds of appeal are examined.

According to the records, in the first instance court, the plaintiffs purchased each real estate of this case from the deceased non-party 1 and the plaintiff 4. The defendants suffered each provisional registration on the real estate of this case from the above non-party 2, and they acquired each of the real estate of this case under the name of the defendants since they completed the principal registration based on the provisional registration under the telephone protocol after the secured obligation was extinguished. Thus, the plaintiffs 1, 2, 3, and 4, who are the successors of the above non-party 1, filed a claim against the defendants for return of unjust enrichment equivalent to the market price of each of the real estate of this case. The court below decided that the plaintiff 3 was the actual owner of each of the real estate of this case by disposing of the real estate of this case, and the plaintiff 3 was claiming for the payment of unjust enrichment since they acquired the claim for return of unjust enrichment from the above non-party 3, and the plaintiffs changed the grounds of claim from the court below to the claim for return of unjust enrichment from the court of first instance.

However, since whether a change in a lawsuit is exchanged or additional authorization is basically based on the interpretation of the intention of the parties, in case where the form of change is obscure due to the assertion of a new cause of claim without a clear declaration that the parties withdraw the previous claim, the court of fact-finding has a duty to clarify what the purpose of the change in the claim is, that is, the exchange price or additional authorization (see Supreme Court Decision 86Meu2600, Jun. 9, 1987). According to the records, the court of fact-finding, without taking such a measure at all, judged only the remaining claim that the plaintiffs made a change in exchange with the claim for the return of unjust enrichment as the claim for the return of unjust enrichment, which is concluded that the plaintiffs made a change in exchange with the claim for the return of unjust enrichment. Therefore, the court of fact-finding is erroneous by misapprehending the legal principles

Therefore, as the plaintiffs are dissatisfied with the judgment of the court below, the amount of KRW 10,00,00 and the amount of KRW 5% per annum from May 28, 1981 to September 30, 1992, and the amount of KRW 25% per annum from the next day to the date of full payment, and the amount of KRW 1,875,00 per annum from September 25, 1982 to September 30, 192 to the date of full payment, and the amount of KRW 1,875,00 per annum from September 25, 1982 to the date of full payment, and the amount of KRW 25% per annum from the next day to September 30, 192 to the date of full payment, and the portion of the amount of KRW 95% per annum from the next day to September 25, 200 to the date of full payment, respectively, shall be reversed and remanded to the court below for full payment.

Justices Shin Sung-sung (Presiding Justice)