Whether the Defendant, in addition to a third party other than the Plaintiff, grants a counterclaim to the counterclaim Defendant (negative in principle), and where such counterclaim is permitted:

In principle, a counterclaim that the defendant added a third party other than the plaintiff to a counterclaim is not permitted, but if the counterclaim that the defendant intends to file is an essential co-litigation, it may be permitted if it satisfies the requirements for addition of the indispensable co-litigants under Article 68 of the Civil Procedure Act.

Articles 68 and 269 of the Civil Procedure Act

DB Development Co., Ltd. (Law Firm Yang & Yang, Attorneys Kang Jong-ho et al., Counsel for the plaintiff-appellant)

Counterclaim Defendant (Re-Counterclaim Plaintiff)

Defendant (Counterclaim Plaintiff, Counterclaim Defendant) (Law Firm Boll, Attorney Lee Jae-chul, Counsel for the plaintiff-appellant)

Daejeon High Court Decision (Cheongju) 2013Na20671, 20688, 2014Na940 decided November 11, 2014

All appeals are dismissed. Of the costs of appeal, the costs of appeal between the Plaintiff (Counterclaim Plaintiff, and the Defendant (Counterclaim Defendant) and the Defendant (Counterclaim Defendant) are borne by each party, and the costs of appeal between the Defendant (Counterclaim Plaintiff, the Plaintiff Counterclaim Plaintiff, and the Defendant Counterclaim Defendant) are borne by each party.

The grounds of appeal are examined.

1. As to the ground of appeal by the Plaintiff (Counterclaim Defendant)

A. As to the assertion of misapprehension of the legal principle as to duty of restoration upon termination of contract

According to the reasoning of the judgment below, the court below held that the contract in this case was transferred to the counterclaim Defendant (Counterclaim Defendant; hereinafter “Counterclaim Defendant”) on the grounds as indicated in its reasoning, and that part of the contract in this case was collected from each land of this case after the Defendant received earth and stones in advance from the Plaintiff Company’s operating right and supplied them to the Plaintiff Company’s business partners. Upon the conclusion of the contract in this case, the Defendant received earth and stones from the counterclaim Defendant and supplied them to the Plaintiff Company’s operating factory and the Plaintiff Company’s business partners until July 2012, 2012. The court below rejected the Defendant’s decision that the Plaintiff did not lawfully pay remainder of the contract in this case upon suspending production of earth and stones to the Plaintiff Company and the Plaintiff Company’s business partners, and that the Defendant did not have any obligation to restore the contract in this case’s sales contract in accordance with the legal principles as to unjust enrichment on the grounds that the Plaintiff Company did not have any obligation to return the contract in this case’s intermediate payment. Furthermore, the court below rejected the Defendant’s allegation that the contract in this case’s counterclaim was unlawful.

Meanwhile, the instant sales contract between the Defendant and the counterclaim Defendant was intended to collect earth and stones from each of the instant land and supply earth and stones collected under the name of the Plaintiff Company to a factory and a trilified Construction Environment Co., Ltd. (hereinafter referred to as “trilified Environment”) and the chemical industry Co., Ltd. (hereinafter referred to as “the chemical industry”), and thus, constitutes the so-called basic relationship in the contract relationship for third parties, and thus, if the instant sales contract is terminated, the Plaintiff Company is deemed to have the duty to restore only between the Defendant, the contracting party, and the counterclaim Defendant, and thus, cannot be a legitimate ground for appeal.

In addition, in light of the records, the agreement that the Defendant agreed to supply the earth and stones produced by the operation of the Plaintiff Company to the customer in the name of the Plaintiff Company is merely a method of payment of intermediate payment and the balance of the purchase price pursuant to the instant sales contract, and cannot be deemed as having the factory, the environment of the operation of the counterclaim Defendant, and the chemical industry acquire the right to directly supply earth and stones against the Defendant, and thus, it cannot be deemed as a contract constituting a so-called basic relationship between the abortion and the summary of the contract for a third party. Therefore, the Plaintiff Company’s ground of

B. As to the assertion of misapprehension of legal principles as to the establishment of tort

Examining the records in light of the relevant legal principles, the court below is just in rejecting the Plaintiff Company’s assertion that the Defendant purchased construction machinery under the name of the Plaintiff Company during the period of operating the Plaintiff Company and transferred the construction machinery owned by the Plaintiff Company to the seller under the name of the down payment constitutes a tort against the Plaintiff Company. In so doing, the court below did not err by misapprehending the legal principles on the establishment of tort, contrary to what is alleged in the grounds of appeal.

2. As to the Defendant’s ground of appeal

A. As to the assertion of misapprehension of legal principles as to counterclaim

In principle, a counterclaim that a third party, other than the plaintiff, is additionally allowed by the defendant to be a counter-defendant. However, if a counterclaim that the defendant intends to file is an essential co-litigation, it may be allowed if it satisfies the requirements for the addition of an essential co-litigants under Article 68 of the Civil Procedure Act.

Examining the record in light of the above legal principles, it is just to determine that the counterclaim against the plaintiff company and the counterclaim defendant filed by the court below against the plaintiff company and the counterclaim defendant is unlawful since the counterclaim is not an essential co-litigation. In so doing, the court below did not err by misapprehending the legal principles on the counterclaim.

B. As to the assertion of misapprehension of the legal principles as to the scope of duty of restitution due to termination

Upon examining the records in light of the relevant legal principles, it is justifiable to determine that the agreement that the Defendant collected soil and stones from each land of this case after acquiring partial management rights of the Plaintiff Company in accordance with the sales contract of this case and supplied them to the company operating the Plaintiff Company or its customer in lieu of the payment of the purchase price is null and void as long as the sales contract of this case was terminated, and thus, the earth and stones produced and supplied by the Defendant is not subject to return to the Plaintiff Company and cannot be deemed as subject to return to the Defendant of the purchase price equivalent to the value of the earth and stones (the counter-party or the Plaintiff Company has no obligation to return the purchase price equivalent to the above earth and stones to the Defendant). Accordingly, the court below did not err by misapprehending the legal principles on the scope of restoration in accordance with the principle of pleading or termination of the contract, since the Defendant’s agent who collected soil and stones from each land of this case and supplied them to the company of the Plaintiff Company or its customer in accordance with the sales contract of this case was not the Defendant but the Plaintiff Company.

3. Conclusion

Therefore, all appeals are dismissed, and the costs of appeal between the Plaintiff and the Defendant are borne by each appellant, and the costs of appeal between the counterclaim Defendant and the Defendant are borne by the losing Defendant. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kwon Soon-il (Presiding Justice)