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(영문) 서울고등법원 2018.09.13 2018나2018861
정산금 지급의무 부존재 등
Text

1. The plaintiffs' appeal is dismissed.

2.(a)

Upon application for the return of provisional payments, the Plaintiff A shall be the Defendant at KRW 177,291,097.

Reasons

1. Scope of trial of the political party after remand;

A. In principle, if only the defendant appealed against the judgment of the court below that partially accepted the plaintiff's claim, and the court of final appeal accepted this appeal and reversed and remanded the part against the defendant in the judgment of the court below against the defendant, the subject of examination in the above final appeal was limited to this part, and if the scope of the case to be remanded and the case to be remanded again, the scope of the judgment of the court below after the remand is limited to the part against the defendant in the judgment of the court below that was rejected before the remand, and the part against

As such, the court below may not examine the case after the remand.

(see, e.g., Supreme Court Decision 201Da31706, Feb. 28, 2013; Supreme Court Decision 90Da18036, May 24, 1991). However, since the legal proceedings of the lower court after remand continue to exist in the appellate court prior to remand, the parties can, in principle, submit new facts and evidence, and conduct all procedural acts permitted at that instance, such as changes in the lawsuit, filing of incidental appeal, and expanding claims, and for this reason, it is inevitable to create unfavorable results to the appellant than the judgment prior to remand.

(see, e.g., Supreme Court Decision 2014Da11376, 11383, Jun. 12, 2014).

After remanding the case, the plaintiffs embezzled money of KRW 542,652,772 in violation of the business agreement with the plaintiffs and sought payment of the amount equivalent to five times the above money according to their investment ratio. However, the court of first instance dismissed all the plaintiffs' claims. 2) Since only the plaintiffs appealed against the judgment of the first instance, the amount that the defendant embezzled or intentionally conceals or conceals the receipts and disbursements (hereinafter referred to as "Embezzlement, etc.") is KRW 674,834,95 in accordance with the business agreement with the plaintiffs, the defendant is liable to pay five times the money to the plaintiffs pursuant to the business agreement.

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