[1] In a case where a mortgagee who believed the legality of the adjudication of expropriation was rendered by mistake of a public project operator, but the mortgagee exercised the subrogation right in the expropriation procedure, and where a project operator did not notify the mortgagee of the invalidation or invalidation of the first adjudication of expropriation without consultation or notification while proceeding again after a considerable period of time, and thereby caused the mortgagee to lose an opportunity to exercise the legitimate subrogation right, whether tort liability may be established against the project operator (affirmative)

[2] The case reversing the judgment of the court below that held otherwise on the ground that there is a proximate causal relation between Gap's series of errors and the loss of the opportunity to exercise the right to exercise the right to exercise the right to exercise the right to exercise the right to exercise the right to exercise the right to subrogation on Eul's second deposit, in case where Gap did not exercise the right to subrogation on the first deposit money which believed the legitimacy of the decision to accept was invalidated, but Gap association did not notify the facts of invalidity or nullity of the first expropriation decision without consultation or notification under the former Land Expropriation Act, while the procedure to expropriate again was conducted by Eul association

[3] Where an appeal is filed only against a part of the judgment of the court of first instance which accepted several claims by the defendant, whether the remaining part of the judgment of the court of first instance which did not appeal is subject to the adjudication of the appellate court (negative in principle), and the time of confirmation of the remaining part which was not subject to the adjudication

[1] Article 25(1) of the former Land Expropriation Act (amended by Act No. 6656 of Feb. 4, 2002); Article 15-2(1) of the former Enforcement Decree of the Land Expropriation Act (amended by Presidential Decree No. 17854 of Dec. 30, 2002) provides that the public project owner shall consult the related persons or notify the related persons of the purport and procedure of expropriation, and the compensation system therefor, if possible, explain the purpose of expropriation, and if possible, to achieve the objective of acquiring land smoothly without exercising public authority; while giving the related persons such as the mortgagee who will lose the security right voluntarily, an opportunity to exercise his/her right by participating in the consultation procedure and exercise his/her right on his/her own; thus, it is also unlawful for the public project owner to provide an opportunity to exercise his/her right by subrogation, such as the mortgagee or other related person to exercise his/her right at the first time after the commencement of the adjudication on expropriation, regardless of the above legitimate ground for invalidation or invalidation of the adjudication procedure.

[2] In a case where: (a) although the first adjudication on expropriation was invalidated due to the erroneous progress and deposit of the adjudication procedure by the Housing Redevelopment Association A, the mortgagee B, who believed the legality of the adjudication on expropriation, exercised the right to subrogation on the first deposit money; (b) thereafter, the Union A again proceeded with the expropriation procedure and made the second adjudication on expropriation; (c) in such process, Article 25(1) of the former Land Expropriation Act (amended by Act No. 6656 of Feb. 4, 2002); (d) Article 15-2(1) of the former Enforcement Decree of the Land Expropriation Act (amended by Presidential Decree No. 17854 of Dec. 30, 2002), and Article 15-2(1) of the former Enforcement Decree of the Land Expropriation Act (amended by Presidential Decree No. 17854 of Dec. 30, 2002) did not notify the Plaintiff of the invalidity or invalidity of the first adjudication on the first expropriation procedure due to the series of errors by the Union A, which did not lose the right to subrogation during the second adjudication on the grounds for invalidation.

[3] Where an appeal is filed only against a part of the judgment of the court of first instance which accepted several claims by the defendant, the remaining parts which have not been appealed shall be prevented, and they shall be transferred to the appellate court. However, as long as the defendant does not expand the purport of the appeal by the time the arguments are closed, the remaining parts shall not be subject to the judgment of the appellate court, but shall be determined at the time of the

[1] Article 32 (1) of the former Urban Redevelopment Act (amended by Act No. 656 of Feb. 4, 2002) (see current Article 40 (1) of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents), Article 25 (1) of the former Land Expropriation Act (repealed by Act No. 6656 of Feb. 4, 2002 Article 26 (1) of the current Act on the Acquisition of Land, etc. for Public Works and the Compensation Therefor) (see current Article 26 (1) of the Act on the Acquisition of Land, etc. for Public Works and the Compensation Therefor), Article 15-2 (1) of the former Enforcement Decree of the Land Expropriation Act (repealed by Act No. 17854 of Dec. 30, 2002; Article 25 (1) of the former Enforcement Decree of the Act on the Acquisition of Land, etc. for Public Works and the Compensation Therefor; Article 750 of the Civil Act / [2] Article 265 of the former Enforcement Decree of the Land Expropriation Act

[1] Supreme Court Decision 2001Da78553 decided Apr. 25, 2003 (Gong2003Sang, 1250) / [3] Supreme Court Decision 94Da4464 decided Dec. 23, 1994 (Gong195Sang, 645) Supreme Court Decision 99Da30312 decided Apr. 27, 2001 (Gong201Sang, 1229)

Yellow School Housing Redevelopment Association (Attorney Go Young-gu, Counsel for the plaintiff-appellant)

Industrial Bank of Korea (Law Firm Spah, Attorneys Lee Lee Jae-hoon et al., Counsel for the plaintiff

Supreme Court Decision 2008Da34668 Decided September 25, 2008

Seoul High Court Decision 2008Na89547 decided May 1, 2009

Of the judgment below, the part of the claim for restitution of unjust enrichment against the collection amount is reversed. The lawsuit concerning this part is terminated upon the pronouncement of the judgment below prior to the remand on April 24, 2008. The part against the Defendant regarding the claim for restitution of unjust enrichment against the entire amount is reversed, and that part of the case is remanded to the Seoul High Court

1. The grounds of appeal are examined.

A. On the first ground for appeal

The allegation in this part of the grounds of appeal is nothing more than misunderstanding evidence preparation and fact-finding, which are matters of the full authority of the fact-finding court, and since the court below cannot be deemed to have violated logical and empirical rules or exceeded the bounds of the principle of free evaluation of evidence, it cannot be a legitimate ground of appeal.

B. On the second ground for appeal

Article 32(1) of the former Urban Redevelopment Act (amended by Act No. 6656 of Feb. 4, 202) provides that “Unless otherwise provided for in this Act, the Land Expropriation Act shall apply mutatis mutandis to expropriation for the implementation of a redevelopment project.” Article 25(1) of the former Land Expropriation Act (amended by Act No. 6656 of Feb. 4, 2002) provides that “In order to acquire or extinguish the right to expropriate land after the announcement of project approval, a project owner shall consult with the landowner and person concerned under the conditions as prescribed by the Presidential Decree.” Article 15-2(1) of the Enforcement Decree of the said Act (amended by the Presidential Decree No. 17854 of Dec. 30, 202) provides that if a project owner fails to exercise his/her right to expropriate the mortgaged right after the announcement of project approval, it shall be deemed that the landowner would be entitled to exercise his/her right to voluntary consultation with the landowner and person concerned, and that such notification should be made to the landowner and person concerned.”

The court below cited the facts of the judgment of the court of first instance as stated in its holding, and rejected the defendant's defense that the plaintiff was liable to compensate for damages arising therefrom on the premise that the defendant could not exercise the subrogation right against the second deposit of this case due to the plaintiff's mistake, and that the defendant was liable to compensate for damages, on the premise that the plaintiff was not able to exercise the subrogation right against the second deposit of this case on June 1, 2005.

However, we cannot accept the above determination by the court below for the following reasons.

According to the reasoning of the judgment of the court of first instance and the records, the court of first instance included the above 20th judgment on January 2, 202 that the joint defendant 1 transferred the ownership of the real estate to the joint defendant 2. The court of first instance and second instance on February 16, 202 that the plaintiff was under the above 10th judgment on the expropriation of the real estate and the first instance court's joint defendant 20th judgment on March 30, 202 that "the joint defendant 2 was under the above 10th judgment on the expropriation of the real estate and the second instance judgment on April 20, 200 that the above 20th judgment on the expropriation of the real estate was null and void." The court of first instance and second instance on March 30, 202 that the joint defendant 2 was under the above 10th judgment on the expropriation of the real estate and the second instance judgment on April 20, 2002 that the plaintiff was under the title of the first instance and second instance judgment on expropriation.

Examining the above facts in light of the legal principles as seen earlier, the first adjudication on expropriation of the instant case was null and void due to the progress and deposit of the Plaintiff’s wrong adjudication procedure. However, as long as the Defendant believed the legality of the second adjudication on June 20, 2003 by exercising the subrogation right on the deposit money, the second adjudication on expropriation of the instant case was conducted on May 21, 2005, and the Defendant was served a second adjudication on June 1, 2005 after two years have passed since the date of payment of the entire amount by the Defendant’s payment of the deposit money, it was difficult to view that the lower court did not inform the Defendant of the above fact that there was no reasonable causal relation between the Plaintiff’s unlawful act and the second adjudication on the ground that the second adjudication on expropriation of the instant case was null and void due to the Plaintiff’s mistake and the second adjudication on the ground that there was no ground for invalidation or invalidation of the second adjudication on the deposit money (the second adjudication on the ground that there was no ground for invalidation of the second adjudication on the Plaintiff’s unlawful acceptance right.

On the contrary, the court below erred by misapprehending the legal principles as to causation of tort, which affected the conclusion of the judgment, and the ground of appeal assigning this error is with merit.

2. The decision shall be made ex officio on whether the part of claim for return of unjust enrichment against the collection amount is confirmed;

Where an appeal is filed only against a part of the judgment of the court of first instance which accepted several claims by the defendant, the remaining parts which have not been appealed shall be prevented, and they shall be transferred to the appellate court. However, as long as the defendant does not expand the purport of appeal by the time the arguments are closed, the remaining parts shall not be subject to the judgment of the appellate court, and it shall not be subject to the judgment of the appellate court, and the lawsuit is terminated after the judgment of the appellate court is rendered (see, e.g., Supreme Court Decisions 94Da4464, Dec. 23, 1994; 9Da30312, Apr. 27, 2001)

According to the records, with respect to the Plaintiff’s claim seeking the return of unjust enrichment against the full amount and the collection amount and the payment of statutory interest or delay damages, the first instance court accepted all of the claims except for the part of the legal interest or delay damages. Accordingly, the Defendant filed an appeal as to the part against the Defendant, other than the part of the claim for return of unjust enrichment against the collection amount, and did not extend the purport of appeal until the closing of argument in the lower court before remand, but the lower court examined and determined the part of the claim for return of unjust enrichment against the collection

Therefore, among the judgment of the court of first instance, the part on the claim for return of unjust enrichment against the collection amount (including the legal interest or the part on the claim for compensation for delay) is confirmed at the same time as the judgment of the court below prior to remand on April 24, 2008 and the lawsuit is terminated. Since the court below was erroneous in reviewing and determining this part after remand, it is erroneous in the misapprehension of legal principles as to the scope of judgment of the appellate

3. Therefore, among the judgment below, the part of the claim for return of unjust enrichment against the collection amount is reversed and the part of the judgment below against the defendant regarding the part of the claim for return of unjust enrichment against the entire amount is reversed and remanded to the court below for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Sang-hoon (Presiding Justice)