[1] Whether the recognition of facts, the selection of evidence, and evaluation are the exclusive authority of the fact-finding court (affirmative in principle)

[2] Where one of the two claims the plaintiff sought selectively in the first instance court accepted one of the two claims, and where the plaintiff sought the part of the claim which was not tried in the first instance court by changing the form of consolidation in the appellate court, and the appellate court recognized the aforementioned part of the claim cited in the first instance court as a preliminary claim, and the appellate court recognized the primary claim as reasonable, whether the conclusion should be pronounced even if it is identical to the order of the first instance court (affirmative)

[1] In light of the purport of the entire pleadings and the result of the examination of evidence, the court shall determine whether the alleged fact-finding is true in accordance with logical and empirical rules (Article 202 of the Civil Procedure Act). The recognition of facts, the selection of evidence, and the evaluation are the exclusive authority of the fact-finding court, unless it exceeds the bounds of the principle

[2] Where one claim is accepted among the two claims selected by the plaintiff in the first instance trial, and the defendant appealed, and where the plaintiff seeks the part of the claim which was not tried in the first instance trial by changing the form of consolidation in the appellate trial, and the appellate court first examines the part of the claim cited in the first instance trial and acknowledges that the claim is reasonable, the appellate court shall not dismiss the defendant's appeal even if the conclusion is the same as the judgment of the first instance court, and shall declare the order of citing the new claim.

[1] Article 202 of the Civil Procedure Act / [2] Articles 208, 253, and 262 of the Civil Procedure Act

[1] Supreme Court Decision 2016Da227694 Decided November 14, 2019 (Gong2020Sang, 4)

Young Life Insurance Co., Ltd. (Law Firm 000, Attorney Choi Jae-sik, Counsel for defendant-appellant)

Defendant

Seoul Central District Court Decision 2017Na65915 Decided March 30, 2018

The judgment of the court below is reversed. The defendant shall pay to the plaintiff 38,090,000 won with 5% interest per annum from May 16, 2013 to October 12, 2016, and 15% interest per annum from the following day to the day of full payment, according to the main claim changed in the court below. The defendant shall bear the defendant's total costs of the lawsuit.

1. The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

A. As to the allegations such as violation of the rules of evidence and incomplete hearing

The court shall determine whether the alleged facts are true in accordance with logical and empirical rules, taking into account the overall purport of pleadings and the result of the examination of evidence (Article 202 of the Civil Procedure Act). The fact finding, the selection of evidence, and evaluation are the discretionary matters of the fact-finding court unless they exceed the bounds of the principle of free evaluation of evidence (see, e.g., Supreme Court Decision 2016Da227694, Nov. 14, 2019).

As to the Plaintiff’s claim for return of unjust enrichment by primary claimant, the lower court determined that the Defendant is liable to pay the Plaintiff the amount of unjust enrichment and damages for delay as stated in its reasoning, on the ground that the Defendant received the daily allowance for hospitalization from the Plaintiff, an insurance company, after receiving hospitalized treatment, even though the need for hospitalization was not recognized within each period after deducting the number of hospitalization days from the number of hospitalization days indicated in the attached Table of the lower judgment.

Examining the reasoning of the lower judgment in light of the foregoing legal doctrine and the record, the lower court did not err in its judgment by failing to exhaust all necessary deliberations and exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, etc.

B. As to the claim on the completion of extinctive prescription

The Plaintiff’s assertion that part of the Plaintiff’s right to claim restitution of unjust enrichment has expired is only the assertion in the supplemental appellate brief that was not timely filed, and it cannot be a legitimate ground of appeal, as it is a new argument that only comes to the final appeal.

2. The decision shall be made ex officio;

According to the records, the following facts are revealed. The plaintiff, on the ground that the defendant received total sum of 38,090,000 won of insurance money for the period of hospitalization in excess of the reasonable hospitalization days, the court of first instance sought a claim for damages and a claim for return of unjust enrichment against the defendant for tort. The court of first instance accepted part of the claim for damages caused by tort and rendered a judgment in favor of the plaintiff. While the defendant filed an appeal and tried at the court of first instance, the plaintiff filed a claim for the return of unjust enrichment for each of the above claims and filed a claim for the return of unjust enrichment for the conjunctive tort. The court of first instance tried the part of the claim for return of unjust enrichment which was not judged in the court of first instance (the changed part to the principal claim at the court of first instance) and recognized that the claim was reasonable, the court of first instance rendered a judgment dismissing the defendant's appeal on the same ground as

However, one of the two claims, which the plaintiff claimed selectively in the first instance trial, is accepted, and the defendant appealed. After the plaintiff sought the part of the claim which was not tried in the first instance trial by changing the form of consolidation in the appellate trial, and the above part of the claim cited in the first instance trial is sought by the preliminary claim, the appellate court first examines the part of the main claim, and recognizes the claim as reasonable, even if the conclusion is the same as the order of the first instance judgment, the defendant's appeal shall not be dismissed, and the decision of citing the new claim shall not be ordered.

As seen earlier, the lower court sentenced the dismissal of an appeal on the ground that the judgment of the first instance and its conclusion are the same. In so doing, it erred by misapprehending the legal doctrine regarding the method of disposal by the appellate court when admitting the portion of a claim not adjudicated in the first instance as a result of the modification

3. Conclusion

Therefore, the judgment of the court below is reversed, and this case constitutes sufficient time for the court to directly judge, and thus, it is decided to do so as follows pursuant to Article 437 of the Civil Procedure Act.

According to the facts duly established by the lower court, the Defendant is obligated to pay to the Plaintiff the amount of KRW 38,090,000 with the unjust enrichment return amounting to KRW 50 per annum from May 16, 2013 to October 12, 2016, and 15 per annum from the following day to the date of full payment.

Although the conclusion ordering the payment of the above money is identical to the order of the judgment of the court of first instance, since the court below acknowledged the part concerning the claim for return of unjust enrichment which was not tried at the court of first instance according to the changed main claim, the court below newly ordered the payment of the above money to the defendant. The total costs of the lawsuit are borne by the defendant. It is so decided as per

Justices Lee Ki-taik (Presiding Justice)