In a complaint, the purport that only a part of the claims, which are the subject of the claim, may be extended according to the progress of the lawsuit, was indicated in that the claim amount should be expanded, but thereafter, if the specific part of the claim is clearly excluded from the claims, whether the interruption of prescription due to a judicial claim takes effect

Where a lawsuit is instituted by clearly stating the purport that only a part of the claim is sought, the interruption of extinctive prescription by a lawsuit shall take effect only in respect of that part, and the remainder shall not take effect: Provided, That where the claim is claimed for only a part of the claim which is the subject of the claim in the lawsuit, and the purport that the amount of the claim shall be expanded according to the progress of the lawsuit, and the actual amount of the claim is expanded until the lawsuit is completed, the interruption of prescription by a judicial claim concerning all the claim shall take effect from the time of the lawsuit. However, even if the written claim states that the claim for only a part of the claim, which is the subject of the claim, is claimed in the written claim, and that the specific part of the claim is clearly excluded from the claims, the interruption of prescription by a judicial claim shall not take effect

Article 168 Subparag. 1, and Article 170 of the Civil Act

Supreme Court Decision 74Da1557 Decided February 25, 1975 (Gong1975, 8348) Supreme Court Decision 91Da43695 Decided April 10, 1992 (Gong1992, 1541) Supreme Court Decision 2019Da223723 Decided February 6, 2020 (Gong2020Sang, 618)

New Jeju Apartment Housing Reconstruction and Improvement Project Association (Law Firm LLC et al., Counsel for the plaintiff-appellant)

Del Co., Ltd. (formerly: Large Forest Industry Co., Ltd.) and one other (Law Firm Sejong, Attorneys Yoon Jae-ap et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2016Na686 decided August 31, 2018

The Plaintiff’s appeal is dismissed in entirety. All of the appeals by the Defendants are dismissed. The costs of appeal are assessed against the Plaintiff, and the costs of appeal are assessed against the Defendants.

1. The plaintiff's grounds of appeal are examined.

A. As to the first ground for appeal

1) In a case where a lawsuit is instituted by clarifying the purport that a judgment is sought only with respect to a part of one claim, the interruption of extinctive prescription by the lawsuit becomes effective only for that part of the claim, and the remainder does not occur (see, e.g., Supreme Court Decision 74Da1557, Feb. 25, 1975). However, in a case where a claim is filed for only a part of the claim, which is the subject of the claim, and the claim amount should be expanded according to the progress of the lawsuit, and where the claim amount is actually expanded until the completion of the lawsuit, the interruption of prescription by a judicial claim as to all of the claim from the time the lawsuit is filed (see, e.g., Supreme Court Decision 91Da43695, Apr. 10, 1992). Even if the complaint explicitly stated that the specific part of the claim amount should be expanded according to the progress of the lawsuit, if the claim amount was excluded from the claim amount, then the interruption of prescription becomes effective due to a judicial claim.

2) The lower court determined that: (a) the Plaintiff filed the instant lawsuit with the purport of claiming part of the amount of damages arising from the defect of the instant apartment on the premise of expanding the amount of claims through subsequent appraisal, etc.; (b) the Plaintiff expressed his/her intent to exclude all the amount equivalent to value-added tax from the claims while submitting an application for alteration of the purport of claim and the cause of claim as of November 12, 2014; (c) based on the appraisal result of October 23, 2015, based on the claim claim and the cause of claim as of October 23, 2015, the Plaintiff presented his/her intention to exclude all the amount equivalent to value-added tax from the amount of value-added tax including value-added tax; and (d) the first instance judgment also calculated the amount of damages after deducting value-added tax from the amount of damages claim in lieu of defect repair; and (e) the Plaintiff did not dispute this portion from the date of final appellate brief as of February 5, 2016, the Plaintiff’s claim was retroactively 14.

3) Examining the reasoning of the lower judgment in light of the aforementioned legal principles and records, the lower court did not err by misapprehending the legal doctrine on the interruption of extinctive prescription of value-added tax amount, contrary to what is alleged in the grounds of

B. As to the grounds of appeal Nos. 2 through 4

Based on its stated reasoning, the lower court did not accept the allegation of defects caused by the alteration of liquid waterproof construction and the allegation of defects caused by the failure to install the artificial intelligence natural ventilation system, on the basis of the cost of replacing a door even in relation to the defect.

In light of the relevant legal principles and records, the lower court did not err by misapprehending the legal principles on the burden of proof of the scope of defects of fire doors, the cost of repairing defects, the concept of defects related to liquid waterproof, the interpretation of intent to waive claims, etc. and thereby adversely affecting the conclusion of the judgment,

2. We examine the defendants' non-objected appeal lawful.

The incidental appeal that is filed after the right to appeal is extinguished shall be filed within the period for submission of the appellant (see Supreme Court Decision 2002Da52657 delivered on December 10, 2002, etc.).

According to the records, the lower court’s incidental appeal by the Defendants is unlawful, since November 13, 2018, which was served on the appellant by the notice of receipt of the records of the appeal on the grounds that the notice of receipt of the records of the appeal was filed on January 25, 2019, past 20 days from November 13, 2018.

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

Justices Kim Jae-hyung (Presiding Justice)