A. Whether a lawsuit seeking return of unjust enrichment constitutes a judicial claim, the grounds for interruption of prescription

B. The binding force of the judgment of remand

A. A judicial claim under Articles 168 and 170 of the Civil Act, which is a cause of interruption of prescription applicable mutatis mutandis to the acquisition of ownership, does not mean a lawsuit for the delivery or confirmation of existence of ownership, or for the registration of ownership. In the case of infringement of ownership, it includes a lawsuit for the removal of interference based on ownership and for the return of unjust enrichment.

B. The binding force of the lower court’s legal judgment on the judgment of remanded may only arise only from the passive point of view that the judgment of the lower court is not justifiable as the grounds for reversal, and the lower court cannot be deemed to have committed an unlawful act which is not bound by the judgment of remanding, even if the parties have reached the same conclusion as the judgment prior to remand by another possible point of view based on the newly asserted and proven facts.

A. Articles 168 and 170 of the Civil Act; Article 406(2) of the Civil Procedure Act

A. Supreme Court Decision 79Da573 delivered on June 12, 1979 (Gong1979, 12064) 79Da569 delivered on July 10, 1979 (Gong1979, 12069) 94Da18577 delivered on February 28, 1995 (Gong195Sang, 1450), Supreme Court Decision 88Da5560 delivered on May 8, 1990 (Gong1990, 1237), 92Da4192 delivered on September 14, 1992 (Gong192, 2868) 94Da20501 delivered on September 9, 1994 (Gong194,2622)

Attorney Choi Jong-si et al., Counsel for the plaintiff-appellant

Defendant

Supreme Court Decision 94Da36049 Delivered on February 28, 1995

Daegu District Court Decision 95Na3556 delivered on June 14, 1995

The appeal is dismissed.

The costs of appeal are assessed against the plaintiff.

The Plaintiff’s attorney’s ground of appeal is examined.

1. On the first ground for appeal

A judicial claim under Articles 168 and 170 of the Civil Act, which is the cause of interrupting prescription applicable mutatis mutandis to the prescriptive acquisition of ownership, does not mean a lawsuit for the delivery or confirmation of the existence of ownership, or for the registration of ownership, which is the cause of prescriptive acquisition. In the case of infringement of ownership, it is interpreted that the lawsuit for the removal of interference and the claim for the return of unjust enrichment based on ownership are also included (see, e.g., Supreme Court Decision 79Da569, Jul. 10, 1979). Accordingly, the judgment of the court below after remanding the same purport is just, and there is no error of law by misapprehending the legal principles as to the prescriptive acquisition

2. On the second ground for appeal

The binding force of the lower court’s judgment on the case of remand is only a passive point of view that the judgment of the lower court is not justified as the reason for reversal, and the lower court is not a crime of unlawful act not bound by the judgment of remand, even though it brought about the same conclusion as the judgment prior to remand by another possible point of view, as otherwise alleged by the parties, according to another possible point of view (see, e.g., Supreme Court Decision 88Da5560, May 8, 190).

According to the court below's decision of remanding party members, the plaintiff occupied the land of this case from April 19, 1974 to February 22, 1993. However, the court below rejected the conjunctive claim of this case since it is clear that 20 years have not elapsed since the date of the lawsuit of this case, which was the date of the lawsuit of this case. Whether the prescriptive prescription has expired or not should be determined at the time of the conclusion of the trial court's argument. Since it is apparent that the 20-year prescriptive prescription period had expired from April 19, 1974 to May 25, 1994, the date of the argument of the court below before remand, the court below erred in the misapprehension of legal principles as to the prescriptive prescription period before remanding the land of this case, and the court below rejected the plaintiff's conjunctive claim of this case, which was remanded to the court below for the same reason as the plaintiff's new admission and return of the statute of limitations period after the plaintiff's new admission to the land of this case.

3. Therefore, the appeal is dismissed and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Chocheon-sung (Presiding Justice)