2017Da223439 Return of down payment

A

1. B

2. C

Suwon District Court Decision 2016Na60588 Decided March 23, 2017

September 12, 2017

The judgment of the court below is reversed, and the case is remanded to the Panel Division of the District Court.

The grounds of appeal are examined.

1. Judgment on the misapprehension of the legal principle as to the assertion of confession

A. The lower court rejected the Plaintiff’s primary claim seeking the return of the loan on the grounds that there is no evidence to prove the primary claim that the Plaintiff lent KRW 100 million to the Defendants by citing the first instance judgment.

B. The record reveals the following facts.

1) Defendant C was served with a complaint stating the aforementioned facts constituting the primary claim at the first instance court, and was present at the first day for pleading of the first instance court, but did not clearly dispute the above facts alleged by the Plaintiff, and did not submit the reply and other briefs.

2) Meanwhile, the first instance court dismissed the Plaintiff’s claim after serving the Defendant B with both the written complaint, the briefs, and the written notice of date for pleading, by public notice, and dismissed the Plaintiff’s claim. The Plaintiff appealed, and the lower court served both the petition of appeal, the statement of reasons for appeal, and the written notice of date for pleading, etc., on the date for pleading of the lower court. The Plaintiff asserted the facts constituting the primary claim as seen earlier by making a statement of the grounds for appeal on January 19, 2017 at the date for pleading of the lower court, and Defendant B did not appear at once at the date for pleading of the lower court, and did not submit the written answer and other briefs. Accordingly, according to Article 150

Nevertheless, the court below maintained the conclusion of the first instance court which dismissed the plaintiff's primary claim on the ground that there is no evidence to acknowledge the above facts of claim. In this regard, the court below erred by misapprehending the legal principles as to the admission of confession as stipulated in Article 150 of the Civil Procedure Act,

2. Therefore, without further proceeding to decide on the remaining grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Young-young

Justices Kim Jae-tae

Chief Justice Lee Dong-won

Justices Kim Jae-in