(영문) 대법원 2018.11.9.선고 2018다251851 판결

Defendant B pays to the Plaintiff 70,000,000 won with 5% interest per annum from October 30, 2014 to June 20, 2018, and 15% interest per annum from the next day to the day of full payment.

The plaintiff's remaining claims against the defendant B and the defendant C are dismissed, respectively.

The part arising between the Plaintiff and the Defendant B out of the total litigation cost shall be borne by the Plaintiff, and the part arising between the Plaintiff and the Defendant C, respectively.

Reasons

1. The defendant B's grounds of appeal are examined.

According to the reasoning of the judgment below, the court below acknowledged the facts as stated in its reasoning, and determined that there was a reasonable ground to believe that the plaintiff was the right to represent the defendant C at the time of the agreement on the pre-sale of the case.

In light of the relevant legal principles and records, the lower court did not err in its judgment by misapprehending the legal principles on mistake of facts, violation of the rules of evidence, and misapprehension of the legal principles on expression agency.

2. The decision shall be made ex officio;

A. A. A subjective and preliminary co-litigation is a form of litigation in which all co-litigants settle the dispute between each other in the same legal relationship without contradiction (Article 70(2) of the Civil Procedure Act), and a judgment is rendered as to the claims against all co-litigants (Article 70(2) of the Civil Procedure Act); a judgment is not allowed, or an additional judgment is not allowed for the remaining co-litigants. The other party’s litigation against a person among co-litigants in a subjective and preliminary co-litigation is ineffective to all co-litigants. As such, if an appeal is filed against either the primary and preliminary co-litigants, the part of the claim against the other co-litigants is transferred to the appellate court, and becomes subject to the appellate court. In such a case, the subject of the appellate court’s judgment shall be determined by taking into account the need for the unity of the conclusion between the primary and preliminary co-litigants and their other parties (see, e.g., Supreme Court Decisions 2006Du1765, Mar. 27, 2008; 2017Da17417

B. The record reveals the following facts.

1) The Plaintiff: (a) granted the right of representation to the Defendant C to conclude the instant pre-sale agreement; or (b) even if not, even if not, the instant pre-sale agreement became effective against the Defendant B; (c) subsequently, (d) sought restitution of unjust enrichment from the rescission of the agreement against the Defendant B; and (e) sought reimbursement of liability for damages arising from the pre-sale agreement against the Defendant C, in preparation for the fact that the pre-sale agreement does not become effective against the Defendant B.

2) The first instance court dismissed the claim against the primary Defendant B and accepted the claim against the primary Defendant C, and only the Plaintiff appealed against the primary Defendant B.

3) Unlike the first instance court, the lower court recognized that the instant prior purchase agreement constituted an expression representation under Article 126 of the Civil Act with respect to the instant prior purchase agreement. Accordingly, the lower court revoked the remainder of the part against the Plaintiff’s primary Defendant B, excluding the partial damages for delay, and subsequently dismissed the Plaintiff’s remaining appeal while accepting the claim for that part, and did not separately determine the claim against the conjunctive Defendant C.

C. Examining the above facts in light of the legal principles as seen earlier, the Defendants’ claims against the Defendants constitute a subjective and preliminary co-litigation in which the determination process of each claim is necessarily mutually combined, because they are in a relationship in which both claims may not be accepted in entirety or either claim may affect the judgment of one of the other claims, and thus, the determination process of each claim is necessarily mutually combined.

Therefore, even if only the plaintiff appealed against the part of the claim against the defendant B among the judgment of the court of first instance, the part of the claim against the defendant C shall also be deemed to have become subject to adjudication by the appellate court, which is the appellate court. Therefore, the court below shall render a final judgment as to all the defendants.

D. Nevertheless, the lower court determined that the part of the claim against the conjunctive Defendant C was excluded from the subject matter of adjudication, and did not render any judgment as to the claim against the Defendant C. In so doing, the lower court erred by misapprehending the legal doctrine on the subject matter of adjudication of subjective and preliminary co-litigation, thereby omitting judgment, thereby adversely affecting the conclusion of the judgment. On the other hand, subjective and preliminary co-litigation in the same legal relationship is a form of litigation in which all co-litigants resolve disputes between the same parties without inconsistency in one litigation procedure, and a single final judgment is rendered as to the claim against all co-litigants (see Supreme Court Decision 2010Da32542, Nov. 11, 2010). Therefore, the lower judgment is reversed in its entirety.

3. Therefore, the judgment of the court below is reversed, and this case is sufficient to be directly tried by this court. According to the facts recognized by the court below, Defendant B is obligated to pay to the Plaintiff damages for delay calculated at the rate of 15% per annum under the Civil Act, from October 30, 2014, which is the date of the judgment of the court below, until June 20, 2018, and from the next day to the date of full payment, the damages for delay calculated at the rate of 15% per annum under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings, since it is reasonable for this case to be tried directly by this court. Accordingly, the Plaintiff’s claims against the primary Defendant B, which are subjective and preparatory relations, are without merit. The judgment of the court of first instance otherwise revoked the Plaintiff’s claims against the Defendant, and the Plaintiff’s remaining claims against the Defendant B and the Plaintiff’s claims against the Defendant are accepted within the scope of recognition, and is dismissed as per Disposition by the assent of all participating Justices.