[1] The case holding that the co-owner does not have a duty of explanation as to whether the right of recourse based on the act of preserving the article jointly owned or the right of subrogation of the former owner in case where a store is sought with a sole ownership

[2] The nature of the claim for the return of provisional payment and the case where the judgment of the court below on the merits is reversed, whether the part of the order for the return of provisional payment is reversed as a matter of course (affirmative)

[1] The case holding that the court does not have a duty to explain whether the tenant claims as part of the preservation of the jointly-owned property or the tenant's subrogation of the original acquisitor on the premise that the tenant is a sole owner and the tenant is not a co-owner at all in the process of the lawsuit

[2] An application for the return of provisional payment is a kind of lawsuit pending in a lawsuit and its nature is a preliminary counterclaim. Thus, inasmuch as the judgment of the court below is reversed after remanding the case, the part of the order to return the provisional payment cannot be exempted from reversal as a matter of course without any need to determine the legitimacy thereof.

[1] Article 126 of the Civil Procedure Act, Articles 265 and 404 of the Civil Act / [2] Article 201 (2) of the Civil Procedure Act

[1] Supreme Court Decision 91Da35106 delivered on June 9, 1992 (Gong1992, 2116), Supreme Court Decision 95Da13685 delivered on November 10, 1995 (Gong1995Ha, 3909), Supreme Court Decision 95Da22078, 22085 delivered on November 28, 1995 (Gong1996Sang, 166) / [2] Supreme Court Decision 92Da38812 delivered on January 15, 1993 (Gong193, 705)

Plaintiff 1 and one other (Attorney Kim Sung-sung, Counsel for the plaintiff-appellant)

Defendant (Attorney Jung-young, Counsel for defendant-appellant)

Incheon District Court Decision 95Na3428 delivered on December 22, 1995

Supreme Court Decision 94Da40239 Delivered on June 9, 1995

The judgment below is reversed. The case is remanded to the Incheon District Court Panel Division.

The grounds of appeal are examined.

1. On the first ground for appeal

The court's exercise of the right to request the statement of this case is to supplement the statement of the party when it is impossible to know the purport of the statement due to contradictions, defects or difficulties, or to urge the party who has the burden of proof to prove it. It is not permitted to present the requirements of legal effect or methods of attack and defense which the party did not assert, and such act is not in violation of the principle of pleading (see Supreme Court Decision 91Da35106 delivered on June 9, 192). Therefore, in the case of this case, where the plaintiffs asserted that each of the stores of this case is owned separately by the plaintiffs and the claim of this case against the defendant is based on the premise that it is owned solely by the plaintiffs, it is not possible to seek the claim of this case as part of the act of preserving jointly-owned property under the premise that the court is a co-owner at all in the process of the lawsuit, or (see Supreme Court Decision 95Da13685 delivered on November 10, 195).

Therefore, the court below did not err in the misapprehension of legal principles as to sharing, the non-exercise of right of explanation, and the incomplete hearing on the ground that the court below did not provide the plaintiffs with an opportunity to seek an explanation of each shop of this case based on the act of preserving jointly-owned property or by subrogation of the above Incheon Comprehensive Development Co., Ltd., which is premised on the premise that the plaintiffs

2. On the second ground for appeal

According to the records, the plaintiffs purchased each of the stores in this case before the former and completed the registration of transfer of sectional ownership in the future of the plaintiffs. Since the defendant, by compulsory execution based on Seoul High Court Decision 92Na48286 delivered on March 25, 1993, ordered the plaintiffs to transfer the part of the site of each of the stores in this case, he was unfairly deprived of possession of each of the stores in this case beyond the scope of its executory power by unfairly ordering the plaintiffs to occupy each of the stores in this case beyond the scope of its executory power, it is evident that the defendant is seeking the name of each of the stores in this case possessed by the defendant based on the ownership or possession right (record 69 pages

Nevertheless, while rendering a judgment against the plaintiff, the court below did not make a decision only on the plaintiff's claim for surrender based on the plaintiff's ownership and on the plaintiff's request for surrender based on the possessor's right of possession. Thus, the judgment of the court below cannot be viewed as an unlawful judgment that made only a part of the claim. The part pointing this out in the grounds of appeal has merit

3. On the third ground for appeal

An application for the return of provisional payment is a kind of lawsuit pending in a lawsuit and its nature is a preliminary counterclaim. Thus, inasmuch as the judgment of the court below is reversed after remanding the case on the above grounds, the part of the order to return the provisional payment cannot be exempted from reversal as a matter of course without any need to determine the legitimacy thereof.

4. Therefore, the lower judgment is entirely 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.

Justices Park Jong-chul (Presiding Justice)