[1] The method of a non-appeal agreement in which both parties to a lawsuit pending pending a judgment not to file an appeal prior to the rendering of a judgment

[2] The party's principle of interpreting the party's intent as to the non-appeal agreement

[3] In a case where a part of the co-owners occupy and use the entire co-owned land exclusively, whether the other co-owners who do not use or make profit from the co-owned land at all are obliged to return unjust enrichment corresponding to their shares (affirmative)

[1] If both parties to a specific case agree not to file an appeal in advance before a judgment is rendered during the proceeding of the case, the judgment becomes final and conclusive at the same time with the declaration, and such agreement shall be based on the document, as it causes the effect of serious litigation laws such as the waiver of right to appeal against the parties to the case, and it shall be clearly expressed that both parties shall not file an appeal in accordance with the written text.

[2] In a case where there is a conflict of opinion on the interpretation of a written non-appeal agreement made by both parties during the lawsuit, and the interpretation of the parties' intentions expressed in the document becomes a problem, the interpretation of procedural acts such as such non-appeal agreement, unlike the legal acts under the substantive law, shall not conflict with or conflict with the contents indicated in accordance with the thorough indication principle and externalism, which is not the intention of internal deliberation. However, considering the purpose of the litigation system in question and the necessity of remedying the rights of the parties, it is necessary to consider the whole allegations of the parties and to interpret the procedural acts objectively and rationally in consideration of the parties' intentions to conduct the procedural acts, and therefore, in interpreting the parties' intentions regarding the procedural acts, whose interests are extreme, depending on the decision on the existence of the agreement, it is unclear that there is a conflict of opinion on the interpretation of the parties' intentions, and furthermore, if the objective and rational interpretation taking into account the parties' intentions and the formation of the parties' intentions inferred by the acts expressed externally is unclear, such agreement shall be denied from a passive point of view as much as possible.

[3] Co-owners of land may use and make profits from the whole land according to their shares, but unless a majority of shares of co-owners have agreed on the specific method of use and profit-making, one can not exclusively possess and use the entire land. Thus, if a part of co-owners exclusively occupy and use the whole land, then a person who has a share of other co-owners but has no use and profit-making is making unjust enrichment corresponding to their shares.

[1] Articles 390 and 395 of the Civil Procedure Act / [2] Articles 390 and 395 of the Civil Procedure Act / [3] Articles 263, 265 and 741 of the Civil Act

[1] Supreme Court Decision 79Da2066 delivered on January 29, 1980 (Gong1980, 12595) Supreme Court Decision 86Meu2728 delivered on June 23, 1987 (Gong1987, 1226) / [2] Supreme Court en banc Decision 83Meu1981 delivered on February 28, 1984 (Gong1984, 589), Supreme Court Decision 95Da11740 delivered on October 24, 1997 (Gong197Ha, 3567), Supreme Court Decision 202Da2066 delivered on April 22, 200 (Gong202Ha, 1757) / [3] Supreme Court Decision 200Da19834 delivered on December 13, 1984 (Gong209, Dec. 29, 197)

Plaintiff 1 and one other (Law Firm Spah, Attorneys Park Woo-dong, Counsel for the plaintiff-appellant)

Defendant 1 and one other (Attorney Jeong-sung et al., Counsel for the defendant-appellant)

Supreme Court Decision 98Da48033 Delivered on January 15, 1999

Busan High Court Decision 99Na1680 delivered on February 11, 2000

All appeals are dismissed. The costs of appeal are assessed against the Defendants.

We examine the grounds of appeal.

1. As to the existence of an agreement without prejudice

If both parties to a specific case agree not to file an appeal in advance during the course of rendering a judgment, the judgment becomes final and conclusive simultaneously with the declaration (see Supreme Court Decision 79Da2066, Jan. 29, 1980; Supreme Court Decision 86Meu2728, Jun. 23, 1987, etc.). Such agreement must be based on a written document, as it causes the effect of a serious litigation law, such as the waiver of right to appeal against the parties to the lawsuit in advance, and the purport that both parties shall not file an appeal in accordance with the language and text of the written document is clearly expressed.

However, in a case where there is a conflict of opinion on the interpretation of a document in which both parties to a lawsuit have been pending, and the interpretation of the parties' intentions expressed in the document becomes an issue, such interpretation of procedural acts, such as the written agreement, shall not conflict with or conflict with the contents indicated in accordance with the thorough indication principle and externalism, which is not the intention of internal deliberation, unlike the legal acts under the substantive law. However, considering the purpose of the litigation system in question and the need for remedy of rights of the parties, it is necessary to consider the whole allegations of the parties to the litigation and to interpret the procedural acts objectively and rationally in consideration of the parties' intentions to conduct the litigation (see, e.g., Supreme Court en banc Decision 83Da1981, Feb. 28, 1984; Supreme Court Decision 95Da11740, Oct. 24, 197; 202Da2026, Apr. 22, 2002).

Therefore, in the interpretation of the parties' intentions concerning procedural acts in which interests between the parties are extreme depending on the determination of existence of the agreement, such as an agreement not to file an appeal, if the contents of the expressed language are unclear, and there is a possibility of opposing arguments regarding the interpretation of the parties' intentions, and it is unclear that the parties' intentions are inferred by the objective and rational interpretation taking into account the parties' intentions and the acts expressed externally, the existence of such agreement should be denied from a passive point of view as much as possible.

According to the records, if the plaintiffs and the defendant Yellow Land Co., Ltd. (hereinafter referred to as the "Defendant Yellow Land") were unable to reach an agreement on the plaintiff's return of this case before and after the remanding of this case (see Supreme Court Decision 97Na11416 delivered on August 27, 198), the court below's conclusion that the above agreement should not be followed by the plaintiff's withdrawal of lawsuit and other related cases which were pending between the plaintiffs and the above defendant, but it is not clear that the above agreement should be followed by the court's conclusion that the above agreement should not be followed, and it is hard to conclude that the plaintiff's return of this case's appeal should be followed by the plaintiff's non-compliance with the above agreement. The court's conclusion that the plaintiff's return of this case's appeal was no longer consistent with the above conclusion of the court's judgment's conclusion that the plaintiff's return of this case's appeal to the court below's non-compliance with the above 97Na11416 delivered on July 31, 199.

In addition, each of the above agreements was prepared only between the plaintiffs and the defendant Yellow River, and it is evident in the record that there was no agreement on the non-acceptance between the plaintiffs and the defendant 1. Thus, it is not possible for the defendant 1 to argue that the validity of the above agreement is applied even with the above agreement citing each of the above agreements.

Therefore, it is reasonable for the court below to deny the existence of an agreement between the plaintiffs and the defendants, as alleged in the plaintiffs, and there is no illegality that affected the conclusion of the judgment, due to the misapprehension of the legal principles as to the interpretation of expression of intent and the probative value of the disposal document, violation of the rules of evidence, incomplete deliberation, incomplete reasoning, failure of proof, free evaluation of evidence

2. As to the assertion that the liquidated damages for the sales contract included the damages for the instant contract in terms of the liquidated damages

According to the reasoning of the judgment below, the court below acknowledged each of the facts in its judgment, and determined that the above facts are just in accordance with the purport of the judgment of the court below, and there were no errors in the misapprehension of legal principles as to the binding force of the judgment of the remanded case, and there were no errors in the misapprehension of legal principles as to the binding force of the judgment of the remanded case as alleged, and all of the circumstances revealed in the records, such as a series of disputes related to the dispute arising between the parties, which were developed between the parties, are not contrary to the principle of trust and good faith, and thus, the plaintiffs' claim of this case cannot be viewed as being contrary to the principle of trust and good faith.

3. As to the assertion as to the management of the article jointly owned

A co-owner of land may use and make profits from the whole land according to his/her share ratio, but unless a majority of shares are agreed among co-owners with respect to the specific method of use and profit-making, one can not exclusively own and use the whole land. If a part of co-owners exclusively occupy and use the whole land, he/she shall be deemed to have made unjust enrichment corresponding to his/her share with respect to a person who has a share among other co-owners but has no use or profit-making profit-making (see Supreme Court Decisions 72Da1814, Dec. 12, 1972; 8Da33855, Sept. 24, 191; 200Da13948, Dec. 11, 201). The judgment of the court below to the same purport is justifiable, and there is no error in the misapprehension of legal principles as to the management of the jointly-owned property.

4. As to the assertion about the scope of damages

According to the reasoning of the judgment below, the court below rejected the defendants' assertion that the above part of the building of this case is limited to rent equivalent to the portion which is not able to use or profit from the underground out of rent of the entire land of this case since the above part of the building of this case was completed after the removal on November 6, 1996, and since the previous judgment ordering the removal of the building of this case and the transfer of the site of this case, the above part of the building of this case ordered the removal of the building of this case and the transfer of the site of this case, after the previous judgment ordering the removal of the building of this case, the defendants did not remove the above part of the building of this case, but buried the residues generated in the process of the removal of the above part of the ground, and did not cause the suspension of the ground, and considering these circumstances, it cannot be deemed that the defendants completed the removal of the above part of the building of this case, or that the above part of the above part of the land could not be seen as having been delivered in the condition of the use of the above part.

Examining the judgment of the court below in comparison with the records, the above fact-finding and judgment of the court below are acceptable, and there is no error in the misapprehension of legal principles as to the scope of compensation for damages, as otherwise alleged in the above. In this case, there is no evidence to acknowledge that there was any negligence on the part of the plaintiffs in this case, since the defendants did not perform their duty to remove the building properly, and there is no other evidence to support that there was any negligence on the part of the plaintiffs.

5. Conclusion

Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Jae-in (Presiding Justice)