[1] In a case where only the defendant appealed against the judgment of the court below that partially accepted the plaintiff's claim, and the defendant reversed and remanded the part against the defendant in the final appeal, whether the court below may examine the case after remanding the part of the judgment of the court below against the plaintiff (negative), and in a case where the plaintiff changed the lawsuit in exchange after remanding the case

[2] In a case where the court below partly accepted the plaintiff's claim for return of unjust enrichment from the plaintiff's conjunctive claimant, and only the defendant reversed and remanded the part against the defendant, and the plaintiff changed the plaintiff's claim to exchange for exchange the claim for confirmation of bankruptcy claim that shares the cause of the conjunctive claim and the amount of the conjunctive claim, the case reversing the judgment of the court below on the ground that the whole of the conjunctive claim changed to exchange the claim for confirmation of bankruptcy claim, but the part of the conjunctive claim which became final and conclusive in the judgment of the court below before remand cannot be determined

[1] In principle, if the plaintiff's claim was partially accepted, only the defendant appealed against the judgment of the court below prior to the remand, and the appellate court accepted this appeal and reversed and remanded the part against the defendant among the judgment of the court below against the defendant, the above part of the judgment of the court of final appeal was limited to this part, and the scope of the judgment of the court below after remanding the case and the scope of the judgment of the court below after remanding the case to the part against the defendant is limited to the part against the defendant in the judgment of the court below prior to remand, and the judgment of the court below against the plaintiff in the judgment of the court below prior to remand has become final and conclusive. Thus, the court below may not examine the above part of the judgment below after remand. However, since the litigation procedure of the court below prior to remand continues in the appellate court prior to remand, the parties can submit new facts and evidence in principle, as well as the parties can conduct all procedural acts permitted at that court level such as changing the lawsuit and expanding the claim. If the lawsuit is changed in exchange, the judgment of the court

[2] In a case where the court below partly accepted the plaintiff's claim for return of unjust enrichment from the plaintiff's conjunctive claimant, and only the defendant reversed and remanded the part against the defendant, but the plaintiff changed to exchange for exchange the claim for confirmation of bankruptcy claim that shares the cause of the conjunctive claim and the amount of the conjunctive claim, the court below reversed the judgment below which accepted the part of the conjunctive claim which exceeds the amount cited in the judgment below prior to the remand, on the ground that the part of the conjunctive claim which exceeds the amount cited in the part of the conjunctive claim prior to the remand became final and conclusive as against the plaintiff, and the part which exceeds the amount cited in the part of the conjunctive claim prior to the remand becomes final and conclusive as against the plaintiff, and the judgment below which cited the part which exceeds the amount cited in the judgment prior to the remand

[1] Articles 262, 415, 425, 431, and 436 of the Civil Procedure Act / [2] Articles 262, 415, 425, 431, and 436 of the Civil Procedure Act

Plaintiff (Law Firm Won, Attorneys Lee Ho-hoon et al., Counsel for the plaintiff-appellant)

Nonparty 1 in bankruptcy by the bankrupt Co., Ltd., the Poscop’s taking over of the lawsuit

PoscoF Co., Ltd. (Law Firm continental Aju, Attorney Gu Class)

Supreme Court Decision 2010Da31792 Decided August 26, 2010

Seoul High Court Decision 2010Na81331 decided February 22, 2011

Of the conjunctive claims of the lower judgment, the part against the Defendant in excess of KRW 1,355,703,714 and subordinate bankruptcy claims of KRW 20,289,804 are reversed, and the changed claim is dismissed in exchange at the lower court that corresponds to this part. The remainder of the appeal is dismissed. All costs of the lawsuit shall be borne by each party.

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

1. As to the grounds of appeal Nos. 1 and 2

The court below acknowledged the facts as stated in its reasoning after comprehensively taking account of the evidence adopted. The court below determined that the plaintiff's claim for the return of unjust enrichment against the supplementary intervenor of the Locom Co., Ltd. due to the impossibility of performing the obligation of ownership transfer registration under the sales contract of this case filed by the plaintiff with the bankruptcy court (hereinafter "the supplementary intervenor") and the claim for the return of unjust enrichment equivalent to the amount of the purchase price paid against the supplementary intervenor of the Locom due to the failure of the plaintiff to perform the obligation of ownership transfer registration under the sales contract of this case and the plaintiff's claim for the return of unjust enrichment against the supplementary intervenor of the Locom due to the failure to perform the obligation of ownership transfer registration under this part of the lawsuit cannot be fulfilled due to the non-liability of the supplementary intervenor. Although the legal nature differs from that of the lawsuit, it is not only the basis of the claim but also the case where the claim is assessed as the same claim with socioeconomic and socioeconomic same claim, in light of the background

In light of the relevant legal principles and records, the fact-finding and determination by the court below is justifiable, and there is no error of law by misunderstanding the legal principles as to the litigation requirements for the assignment of claims or the confirmation of bankruptcy claims.

2. As to the third ground for appeal

According to the reasoning of the judgment below, the court below held that, in light of the following facts, although Licom purchased the instant real estate owned by Nonparty 2 from the supplementary intervenor, and decided to accept the payment of down payment in lieu of the down payment, it did not pay interest on loans to Young Mutual Savings Bank, which is a collateral obligation for the right to collateral security established on the instant real estate, and Nonparty 2 paid 89,905,469 won interest on the said loan obligation in accordance with the agreement with the supplementary intervenor, etc., however, Nonparty 2, the creditor of Nonparty 2, regardless of this, filed an application for a compulsory auction on the instant real estate by Nonparty 3, who was the creditor of Nonparty 2, filed an application for a voluntary auction on the instant real estate, and as a result, Lisung Co., Ltd received the instant real estate in the auction procedure, it cannot be deemed that the progress of the above auction procedure could not be prevented even if Lisung paid KRW 89,905,469.

In light of the relevant legal principles and records, the fact-finding and determination by the court below is just, and there is no error of law by misapprehending the legal principles on the impossibility of performance of a sales contract as alleged in the

3. As to the fourth ground for appeal

In addition to the facts acknowledged by the lower court, the materials presented by the Intervenor reveal that, in lieu of the payment of the remainder of KRW 865 million under the instant sales contract, Licom transferred to the Intervenor the claim amounting to KRW 4.3 billion against NAN Holdings Co., Ltd. and its guarantor, in lieu of the payment of the remainder of KRW 865 million under the instant sales contract, the Intervenor obtained at least the benefit equivalent to the remainder under the instant sales contract with the claim.

The judgment of the court below to the same purport is just and acceptable, and the grounds of appeal disputing this are not accepted.

4. As to the fifth ground for appeal

A. The appeal is accepted by the court of final appeal against the judgment of the court below that partially accepted the plaintiff's claim, and if the part against the defendant was reversed or remanded from the judgment of the court of final appeal against the defendant, the above part of the judgment of final appeal is limited to this part, and the scope of the case to be remanded, and the scope of the judgment of the court below after remanding to another part of the judgment of the court below is limited to the part against the defendant in the judgment of the court of final appeal against the defendant before remand. Thus, the part against the plaintiff in the judgment of the court of final appeal against the plaintiff in the judgment of the court of final appeal against the judgment of the court of final appeal against the plaintiff shall be decided after remand. However, since the litigation procedure of the court below after remand to the court of final appeal is continued before remand, the parties can submit new facts and evidence in principle, as well as the parties can conduct all procedural acts permitted at that court level such as changing the lawsuit and expanding the claim. If the lawsuit is changed in exchange, the judgment of the court of final appeal shall become invalidated

B. According to the records, prior to the remanding of the Plaintiff’s conjunctive claim, the lower court determined that the Intervenor had a duty to return 1,210,094,531 won calculated by deducting the obligation of the Intervenor to the Intervenor to the Intervenor’s Intervenor’s Intervenor from 1.3 billion won, including the intermediate payment of KRW 435 million and the remainder of KRW 865 million, which is deemed to have been paid by the Entercom pursuant to the instant sales contract, and the legal interest and delay damages therefrom, which are deemed to have been paid by the Intervenor. The lower court determined that only the Defendant appealed the part against the Defendant, and the lower court’s appeal was not filed against the Plaintiff. The lower court determined that the Intervenor’s conjunctive claim should be changed into a final lawsuit, and that the Plaintiff should return the remainder of the claim to the Defendant with the amount of KRW 500,000,000,000,000,000,000,000,000,000.

C. In light of the facts in light of the aforementioned legal principles, the portion exceeding KRW 1,210,094,531 of the conjunctive claim of the judgment below prior to remand is determined against the plaintiff. However, the conjunctive claim that changed in exchange at the court below to exchange is the subject of the judgment of the court below.

However, the claim for the return of unjust enrichment at the court below before remand and the claim for the confirmation of bankruptcy claim changed in exchange at the court below before remanding, which is to recover the same claim held by the bankruptcy creditor, and its purpose is substantially identical, and the legal basis and nature of the substantive law, such as the claim for the return of unjust enrichment, are identical. However, it is reasonable to view that both are substantially identical in the subject matter of a lawsuit since the claim for the return of unjust enrichment at the court

Therefore, since the part exceeding the legal interest and delay damages in the judgment of the court below prior to the remanding of the case is finalized against the plaintiff, it is not possible to make a different judgment as to the claim for confirmation of bankruptcy claim which is substantially the same subject matter of lawsuit, and it is necessary to dismiss this part of the claim.

Nevertheless, the court below accepted the part of the preliminary claim, which exceeds the legal interest and delay damages on the KRW 1,210,094,531, and it cannot avoid reversal of the judgment below.

Furthermore, we examine the part of the conjunctive claim of the lower court. If legal interest and delay damages as calculated by the lower court is calculated with the principal of KRW 1,210,094,531 cited by the lower court before remanding, the legal interest and delay damages calculated at the rate of 6% per annum from November 28, 2007 to November 29, 2009 with respect to the principal amount shall be 145,609,183 won [1,210,094,531 won x 0.06 x 0.06 x 2/365)]. The legal interest and delay damages calculated at the rate of 6% per annum from the following day to March 11, 2010 shall be 20,289,804 won (1,210,094, x 5310 x 5310 x 6313051 x 531415 ,2075 ,2941).

5. Regarding ground of appeal No. 6

The court below rejected the defense of set-off on the ground that it is difficult to view that the claim for reimbursement or damages is established on the ground that it is against the plaintiff's unjust enrichment claim by taking over the claim for reimbursement or damages amounting to KRW 3.244 billion, which is equivalent to the market price of the above shares against Twits, and the supplementary participant taken over the claim for reimbursement or damages amounting to KRW 3.244 billion, which is the market price of the above shares against Twits.

Although the court below determined that the person who held the above shares is a supplementary participant, not a triar, according to the records, as long as there is insufficient data to view that triar received the above shares from triar and provided them as a security at will, thereby causing considerable damage to the market price, the court below's rejection of the defendant's counterclaim is justifiable, and therefore, there is no error of law in the misapprehension of legal principles affecting the conclusion of the judgment, contrary to what is alleged in the ground of appeal.

6. Conclusion

Therefore, among the conjunctive claims of the lower judgment, the part against the Defendant in excess of KRW 1,355,703,714 and subordinate bankruptcy claims of KRW 20,289,804 among the conjunctive claims of the lower court is reversed. Since this part is sufficient for the lower court to directly render a judgment, this part is decided to be in accordance with Article 437 of the Civil Procedure Act. Accordingly, the changed claim in exchange at the lower court falling under this part is dismissed, and the remainder of the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Shin (Presiding Justice)