(영문) 대법원 2014.6.26.선고 2013다218385 판결

Of the Plaintiff’s appeal, the part of the Plaintiff’s appeal concerning the claim for damages or the claim for restitution of unjust enrichment on the real estate indicated in [Attachment 2] List of Real Estate List 2 of June 24, 2013.

Reasons

1. On June 24, 2013, the appeal on the claim for damages or the claim for return of unjust enrichment on the real estate (hereinafter referred to as "real estate (hereinafter referred to as "real estate) recorded in the List 2 of Attached Real Estate List 2 of the briefs dated June 24, 2013 is lawful.

In a case where the appellate court has received an application for change of the cause of the claim without appropriately exercising the right to command the lawsuit, and without taking any measure such as adding a claim either selective or preliminaryly irrelevant to the existing claim, it is not allowed to request a consolidation of several claims to be joined purely simple or preliminary claims because it has no logical relation. Therefore, in a case where the appellate court received an application for change of the cause of the claim, the appellate court may not change the form of the claim into legitimate selective or preliminary consolidation relationship (see, e.g., Supreme Court Decision 2007Da354, May 28, 2009). Meanwhile, if a new claim is added to the appellate court, the appellate court shall judge the additional claim as the actual first instance court with respect to the additional claim, and where the appellate court dismissed the existing claim, the appellate court shall not merely indicate "the order of the plaintiff's appeal" and the appellate court shall not dismiss the plaintiff's claim as to the additional claim (see, e.g., Supreme Court Decision 2004Da38404, Apr.

In addition, in order to clarify the judgment of the court, whether there is any omission of judgment due to the fact that the conclusion is stated in the text of the judgment shall be determined by the statement in the text of the judgment. If there is any omission of judgment, the part of the lawsuit is still pending in the original judgment, and thus, the appeal on that part is unlawful (see, e.g., Supreme Court Decision 2007Da354, May 28, 2009).

According to the records, the plaintiff sought compensation or return of unjust enrichment for the possession and use of each of the real estate listed in the table 1, 3, and 4 of the original judgment (hereinafter collectively referred to as "real estate in this case", and each of the real estate in the same manner as "real estate 1). The court of first instance decided to dismiss the plaintiff's claim, and the court of first instance decided to dismiss the plaintiff's claim. The plaintiff claimed KRW 100 million out of the aggregate amount of the rent for the real estate in this case 1) as stated in the original judgment's attached list 1, 3, and 4, and the amount of the rent for the real estate in this case as stated in each of the above items 1). The court below rejected the plaintiff's claim without any reasons for 100 million won out of the aggregate amount of rent for the real estate in this case 200 million won and the amount of rent for the real estate in this case as stated in the previous order of number 100 million won.

In light of the legal principles as seen earlier, a claim for damages or a claim for restitution of unjust enrichment regarding real estate 2) added at the court below is not mutually related to a claim for damages or a claim for restitution of unjust enrichment regarding the pertinent real estate, which was an existing claim, and thus cannot be joined in the conjunctive one. Thus, even if the court below accepted the application for change of the cause of the claim, the form of consolidation of the claim cannot be changed to a legitimate preliminary one. In such cases, the court below should have rendered a judgment as the first instance court on the claim for damages or a claim for restitution of unjust enrichment regarding real estate added to the court below. However, the court below did not make any judgment on the disposition of the court below and its reasoning, unless it did not make any judgment on the claim for damages or the claim for restitution of unjust enrichment with respect to real estate, this constitutes a case where the judgment on the above additional claim was omitted.

Furthermore, on the grounds that the same applies to the claim for damages concerning the instant real estate or the claim for restitution of unjust enrichment, it is unlawful to combine each of the instant claims with the conjunctive claims, and thus, it is inappropriate to request it. As such, the lower court should have exercised the right to command the lawsuit appropriately and taken measures, such as correction

2. We examine grounds of appeal Nos. 1 and 2.

A. The court below rejected all the plaintiff's selective claimant and claim for return of unjust enrichment premised on the defendant's illegal and unjust possession and use of the real estate in this case, if the defendant occupied and used the real estate of this case, which is inevitable church property, in order to support the defendant and support the resolution for religious order change at the request of such members, and to assist them in religious activities, such as worship, etc., such act cannot be readily concluded as an occupation without any legal ground.

B. However, we cannot accept the above judgment of the court below for the following reasons.

According to the reasoning of the judgment below and the records, the plaintiff church is a branch church belonging to the Diplomatic Association EM (hereinafter referred to as the "EM association"), Article 2 of the Addenda to the plaintiff church, Article 2 of the D religious Association Part II of the Constitution of the D religious Association provides that the church organized by not less than two members of the plaintiff church shall be in charge of worship and the land and houses of the plaintiff church shall be managed. From around April 2004, in the process, there are still conflicts and Bans between the members of the EM association with the purpose of removing the plaintiff church from office and suspending the duties of the head of the plaintiff church, or sending part of the plaintiff church's EM list from 00 to 200 to 4.3.5 of the defendant's religious association from 205 to 3.4 of the defendant's religious association's religious association's temporary termination of the duties of the plaintiff church's EM association and the defendant's management of the plaintiff church's EM's right to dismiss the plaintiff church.

According to the above facts, from the time when the defendant was dismissed from office or withdrawn from office at the latest, the defendant was held in the position of the pastor of the plaintiff church or was deprived of the right to possess the real estate of this case. However, under the premise that he still remains in the position of pastors, he had occupied the real estate of this case along with G, etc. without authority and used it for religious activities including worship, etc., under the premise that he was still in the position of pastors. Thus, barring any special circumstances, the defendant is liable to compensate the plaintiff church for damages arising from the illegal possession and use of the real estate of this case, or to return unjust enrichment therefrom. It cannot be viewed otherwise solely on the ground that some of the members of the plaintiff church participated in the worship's worship, etc. which is based on

Nevertheless, the lower court determined that the Defendant’s possession of the instant real estate cannot be readily determined as illegal occupation or possession without any legal cause solely based on the circumstances indicated in its reasoning. In so doing, the lower court erred by misapprehending the legal doctrine on the establishment of tort or unjust enrichment, thereby adversely affecting the conclusion of the judgment.

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. Of the Plaintiff’s appeal, the part concerning the claim for damages on real estate or the claim for return of unjust enrichment is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.