Whether the binding force of the judgment reversed and remanded has also been pointed out incidentally (negative)

The court to which the case was remanded from the court of final appeal is bound by a factual and legal judgment made by the court of final appeal as the reason for reversal, but the binding force of the judgment remanded does not extend to any portion without logical and inevitable relation. Thus, the court below did not examine any further as to the waiver of the benefit of prescription pointed out incidental to the part that was not the reason for reversal in the judgment after remand, but cannot be said to be unlawful even if the court below rendered the same judgment as the judgment of the court below before remand.

Article 406(2) of the Civil Procedure Act

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Park Jae-soo et al., Counsel for plaintiff-appellant)

Satellite (Attorney Tae-young et al., Counsel for defendant-appellant)

Korea

Supreme Court Decision 96Da9300 Delivered on May 28, 1996

Daegu District Court Decision 96Na7265 delivered on November 27, 1996

The appeal is dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal by the defendant litigant are examined.

1. On the first and second grounds for appeal

According to the reasoning of the judgment of the court below, the court below found facts as stated in its reasoning based on its evidence, and found that the plaintiff occupied the land No. 138 square meters as the intention to own the land No. 138 square meters in the attached Form (A) of the judgment of the court below among the 60-24 m24 m24 m2, 165 m2 (hereinafter referred to as the "real estate in this case") in the Gu-si, Nowon-gu, Seoul, and held that the acquisition by prescription was completed on January 15, 1985 after the lapse of 20 years from January 15, 1965 when the plaintiff commenced possession. The court below's fact-finding and judgment of the court below are correct, and it cannot be said that there is a misapprehension of the legal principles as to the mistake of facts due to a violation of the

2. On the third ground for appeal

The court below held that the plaintiff brought a lawsuit only on the 30/50 shares of the real estate in this case against the non-party Lee Jong-young and Lee Il-young, but it seems that it was due to the provisions of Article 5 (2) of the State Property Act that excluded state property from the subject of prescriptive acquisition. Further, on January 29, 1994, the plaintiff filed an application for purchase on the 20/50 shares of the real estate in this case with the defendant on January 29, 1994, but the ordinary possessor attempted to purchase the real estate in order to resolve disputes with the owner after the expiration of the statute of limitations. Such decision of the court below is just, and on the other hand, the court remanded the case from the court of final appeal is bound by the factual and legal judgment of the court of final appeal as the reason for reversal, or (see Supreme Court Decision 95Da12828, Jan. 26, 1996). Thus, the court below did not err in the misapprehension of legal principles as to the waiver of the statute of limitation interest and its binding force, and it did not reverse the judgment.

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

Justices Park Jong-ho (Presiding Justice)