[1] In a case where only the defendant appealed against the judgment of the court below before the plaintiff's principal lawsuit and the defendant's counterclaim claim were partially accepted, and the part against the defendant as to the principal lawsuit and counterclaim was reversed and remanded in the final appeal, whether the court below may examine the part of the judgment of the court below before remanding the part against the plaintiff as to the principal lawsuit and the part concerning the defendant as to the counterclaim (negative) / Whether the judgment of the court below may be disadvantageous to the appellant than the judgment of the court below before remand due to the party's litigation (affirmative)

[2] Where the form of alteration of a lawsuit is unclear, the content of the duty of explanation borne by the fact-finding court

[1] Articles 262, 415, 425, 431, and 436 of the Civil Procedure Act / [2] Articles 136 and 262 of the Civil Procedure Act

[1] Supreme Court Decision 90Da18036 Decided May 24, 1991 (Gong1991, 1727) Supreme Court Decision 91Da18132 Decided November 22, 1991 (Gong1992, 262) Supreme Court Decision 201Da31706 Decided February 28, 2013 (Gong2013, 550) / [2] Supreme Court Decision 2007Da51703 Decided January 15, 2009

[Judgment of the court below]

Defendant (Law Firm Rolo, Attorneys Cho Jae-min et al., Counsel for the defendant-appellant)

Supreme Court Decision 2011Da108019, 108026 Decided June 14, 2013

Seoul High Court Decision 2013Na44371, 44388 decided January 17, 2014

The part of the lower judgment against the Plaintiff (Counterclaim Defendant) regarding the remainder of the principal lawsuit, excluding the portion of the claim for reimbursement of beneficial costs or restitution of unjust enrichment, and the part against the Plaintiff (Counterclaim Defendant) regarding the conjunctive claim, are reversed, and that part of the case is remanded to the Seoul High Court

The grounds of appeal are examined.

1. The Plaintiff’s principal lawsuit and the Defendant’s counterclaim claim were partly accepted, and the final appeal accepted this final appeal and the final appeal reversed and remanded the part against the Defendant regarding the principal lawsuit and counterclaim, the part against the Defendant was limited to this part of the judgment below, and in principle, the subject of examination in the final appeal became limited to the part against the Defendant in the judgment below prior to remand, and the scope of the judgment of the court below after remanding the case to the end, and the scope of the judgment of the court below is limited to the part against the Defendant in the judgment below prior to remand. Since the judgment of the court below prior to the remand and the part against the Defendant regarding the counterclaim against the Plaintiff in the judgment below prior to the remand became final and conclusive, the court below cannot review it (see, e.g., Supreme Court Decisions 90Da18036, May 24, 1991; 2011Da31706, Feb. 28, 2013).

However, since the legal proceedings of the court below after remand continue in the appellate court before remanding, parties can submit new facts and evidence in principle, and all procedural acts permitted in that instance as well as the modification of the lawsuit, the filing of incidental appeal, and the extension of claims. For this reason, it is inevitable that unfavorable results in unfavorable consequences to appellant than the judgment before remanding (see, e.g., Supreme Court Decision 91Da18132, Nov. 22, 1991).

Meanwhile, the issue of whether a change in a lawsuit is exchanged additionally or selective is basically based on the interpretation of the parties’ intentions. In a case where the change form is unclear by changing the new claim without clearly expressing that the parties withdraw the previous claim, the court of fact-finding has a duty to explain whether the purpose of changing the claim is additional or selective authorization. In addition, in a case where a party’s assertion is unclear or incomplete or contradictory from the legal perspective, the court shall seek an explanation from the legal point of view. If the court intends to determine the propriety of the claim on the ground of the legal point of view that the parties were not aware of or have not anticipated, it shall give the party an opportunity to state his opinion regarding the legal point of view, and if the court intends to determine the propriety of the claim on the ground that there was a legal point of view that the parties were not aware of or have not anticipated, it shall not be said that the party committed an unlawful act that failed to exhaust all the duty of explanation, thereby failing to exhaust all necessary deliberations (see, e.g., Supreme Court Decisions 2007Da51703, Jan. 15, 2009).

2. Review of the reasoning of the lower judgment and the record reveals the following facts.

A. The Plaintiff (Counterclaim Defendant; hereinafter “Plaintiff”) filed a claim against the Defendant (Counterclaim Plaintiff; hereinafter “Defendant”) for the payment of the lease deposit and loan in relation to the instant sales contract on behalf of the Defendant, which were returned or paid to the Defendant in relation to the instant sales contract, expenses incurred in repairing the instant building, beneficial expenses or office management expenses, and damages incurred due to the Defendant’s nonperformance (such as various taxes, such as property tax, lawsuit expenses related to return of lease deposit, litigation expenses related to return of lease deposit, refund of lease deposit, and delay damages incurred in repairing the building). Accordingly, the Defendant filed a counterclaim against the Plaintiff for the payment of the restitution of the lease deposit and the estimated amount of compensation for damages due to the termination of the contract, which was primarily caused by the Plaintiff’s nonperformance (ir performance impossible), and the Defendant filed a claim for the delivery of the instant building and the land.

B. The court of first instance rendered a judgment that dismissed both the principal claim and the main counterclaim and partly accepted only the conjunctive counterclaim (the plaintiff is paid the total sum of the lease deposit and the amount equivalent to the remainder of the loan interest calculated by deducting the lease deposit and the amount partially repaid by the defendant from the defendant, and at the same time, ordered the defendant to perform the procedure for registration of ownership transfer and to deliver the real estate).

C. Accordingly, both the Plaintiff and the Defendant filed an appeal against each party against the principal lawsuit and counterclaim, and the lower court, prior to remanding, partly accepted only the Plaintiff’s appeal against the principal claim (the Defendant shall be granted the Plaintiff the implementation of the procedure for ownership transfer registration and the delivery of real estate, and at the same time, pay the sum of the interest on the remainder of loans and the amount equivalent to the amount of the lease deposit and the Defendant’s partial repayment to the Plaintiff, and the Defendant shall pay to the Plaintiff the benefit or unjust enrichment recognized as part of the instant building), the remainder of the appeal and counterclaim against the Plaintiff, and the Defendant’s appeal against each of the Defendant’s losing parts of the principal lawsuit and counterclaim before remanding the judgment of the lower court.

D. However, the judgment of remand, however, should have deliberated on the amount of monthly rent that the Plaintiff received from the lessees of Nos. 101, 102, and 104 of the instant building, and on the extent that the Plaintiff’s monthly rent (4.80,000 won) and the interest rate on loans are settled as of August 31, 2004, and should have calculated the interest rate on the loans to be paid to the Plaintiff after further deliberation, and it is difficult to view that the Defendant has the obligation to repay beneficial costs or the obligation to return unjust enrichment with respect to the second floor of the instant building. Accordingly, the judgment of remand reversed and remanded the part against the Defendant regarding each of the ancillary claims against the Plaintiff regarding the principal lawsuit and each of the ancillary claims against the counterclaim (However, the Defendant’s appeal against the main counterclaim was dismissed).

E. Since then, in calculating the interest rate on loans to be paid by the Defendant to the Plaintiff, the Plaintiff should deduct KRW 22,283,853 from the lessees of the instant building 101, 102, and 104. However, in addition to the portion claimed in the lower court prior to remand, the part of the loan interest that was additionally paid by the Defendant on behalf of the Defendant is also liable to pay to the Defendant, taking into account the above part. ② Since the Plaintiff fully repaid the loan principal of KRW 75,00,00 on January 16, 2012, which was the first sentence of the lower judgment prior to remand, the Defendant is liable to pay to the Plaintiff, and ③ from 207 to 2013, the remaining 3,156,610, which was deducted from the amount of local taxes imposed on the instant building and the instant land, including the property tax, were presented to the Defendant, and the evidence was presented to the Defendant on January 14, 2013.

F. The lower court concluded the pleadings without questioning or pointed out the Plaintiff as to the meaning of the Plaintiff’s assertion contained in the said briefs.

G. The lower court rendered a judgment to the effect that, during the period from September 1, 2004 to January 16, 2012, the Plaintiff’s obligation to pay the remainder after deducting the aggregate of the monthly rents received from the lessees referred to in subparagraphs 101, 102, and 104 of the instant building from the total amount of monthly rent within the scope of KRW 480,000,000 per annum from the lessee under subparagraphs 101, 102, and 104 of the instant building, the Plaintiff’s obligation to pay the remainder shall be deemed to have both the performance of the procedures for the registration of ownership transfer and the obligation to deliver real estate, the Plaintiff’s appeal as to the principal claim and the preliminary claim as to the Plaintiff’s counterclaim shall be partially accepted, and that the remainder of the Plaintiff’s appeal (the portion of the Plaintiff’s claim for return of unjust enrichment or unjust enrichment)

H. However, the lower court did not render any judgment as to the specific legitimacy of the Plaintiff’s respective arguments on the ground that the Plaintiff’s assertion as above cannot be seen as a claim, since it did not constitute an object of the judgment of the lower court.

I. Accordingly, the Plaintiff filed an appeal against the part against the Plaintiff regarding the remainder other than the part on the reimbursement of beneficial costs and the claim for return of unjust enrichment in the principal lawsuit of the lower judgment, and against the part on the conjunctive claim against the Plaintiff.

3. First, we judge the preliminary claim among the counterclaim.

In light of the above circumstances in light of the legal principles as seen earlier, it is clear that the Plaintiff asserted new facts that it had not been asserted by the original court before remanding to the original court before remanding to the original court and submitting relevant evidence is legally allowed in the litigation procedure of the appellate court after remanding to the original court. Moreover, it is evident that the Plaintiff’s new arguments in the original court constituted a defense against the conjunctive counterclaim at least. Thus, the Plaintiff’s assertion is naturally included

Therefore, the court below should have judged the scope of acceptance of the preliminary counterclaim after examining specifically the legitimacy of the above defense made by the plaintiff, including whether the plaintiff had already been rejected and related to the final and conclusive part of the main claim.

Nevertheless, the lower court did not render any determination as to the above allegations, which constituted a defense as to the remaining conjunctive counterclaims, by which only the Plaintiff’s aforementioned arguments were understood as the allegations related to the principal claim. In so doing, the lower court erred by misapprehending the legal doctrine on the scope of adjudication by the appellate court that received the reversal and return, or omitting judgment, which affected the conclusion

4. Next, we judge the remainder except for the portion claiming reimbursement of useful expenses or return of unjust enrichment in the principal lawsuit.

As seen earlier, the plaintiff newly asserted that the court below had the obligation to pay the amount that was not claimed in the court below prior to remand through a preparatory document, but did not clearly state whether it is a change in the principal lawsuit. However, first of all, whether to seek a change in the principal lawsuit or not is a matter to be confirmed through the interpretation of the plaintiff's intent contained in the document, not only through the title of the document submitted by the plaintiff, but also through the interpretation of the plaintiff's intent contained in the document. In light of the progress of the lawsuit in this case, the above argument by the plaintiff is not merely a defense as to the preliminary counterclaim, but also a claim related to the principal lawsuit itself.

In light of the above legal principles, the court below should have confirmed the legal nature of the plaintiff's assertion and determined the scope of the judgment as the court below after remanding, clearly stating the legal nature of the plaintiff's assertion, as to whether the plaintiff's assertion that was obscure as above merely applies to the plaintiff's defense as to the conjunctive counterclaim, or whether the plaintiff's assertion was modified together with the purport of changing the claim as to the main claim, and if the main claim is changed, whether the purport of the change is added, exchanged, or selective or not.

Nevertheless, the court below, without taking such measures, determined that the Plaintiff did not constitute a new claim in the court below on the ground of the legal point of view as stated in the reasoning that the Plaintiff was not expected, and therefore does not fall under the subject of the judgment of the court below. The court below erred in the misapprehension of legal principles as to whether to change the lawsuit or failing to perform its intellectual duties, and it is clear that such illegality affected the judgment.

5. Therefore, the part of the judgment below against the plaintiff as to the part against the plaintiff as to the plaintiff's conjunctive claim and the part against the plaintiff as to the conjunctive claim, excluding the part concerning the reimbursement of useful expenses and the claim for return of unjust enrichment, shall be reversed, and this part of the case shall be remanded to the court below for further proceedings consistent with this Opinion.

Justices Jo Hee-de (Presiding Justice)