The case holding that the cancellation of the judgment of the first instance and the dismissal of the main claim can be seen as including the purport that the preliminary claim against the main claim is dismissed.

The case holding that since the plaintiff's conjunctive claim can be seen as being included in the main claim as the conjunctive claim for the main claim, and it is clear that the court below rejected the conjunctive claim on the grounds that there are no grounds for the conjunctive claim, the cancellation of the judgment of the court of first instance and the dismissal of the main claim can be seen as including the purport that the conjunctive claim for the main claim is dismissed.

Articles 193 and 198 of the Civil Procedure Act

Supreme Court Decision 68Da508 decided May 28, 1968 (No. 16B citizen90) decided October 11, 1991 (Gong1991, 2701)

[Judgment of the court below]

Defendant

Supreme Court Decision 93Da9903, 9910 Decided October 12, 1993 (Counterclaim)

Seoul Civil District Court Decision 93Na43810, 49337 decided May 12, 1994

The appeal is dismissed.

The costs of appeal shall be assessed against the plaintiff (Counterclaim defendant).

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

1. Reviewing the evidence relation as stated by the court below by comparing it with the records, the fact-finding by the court below is all justified, and there is no error of law by misconception of facts against the rules of evidence as alleged in the judgment below

If the facts are as determined by the court below, first of all, the defendant has a legitimate interest in the repayment of the construction debt to the non-party 1 on behalf of the plaintiff, and thus, the court below's decision is just, and contrary to this, it is clear that the plaintiff's own assertion to the effect that the plaintiff has a benefit of subrogation only when the plaintiff is

2. Next, the court below's assertion that there was a delay of performance on the remaining part of the purchase price of this case which remains after deducting the down payment and the construction payment subrogated by the defendant. However, the court below's assertion that there was a delay of performance on the part of the purchase price of this case is insufficient in its reasoning, but it is not reasonable to conclude that the contract cancellation of the plaintiff's contract cannot be effective since it is the so-called largeest peremptory notice that the defendant notified that the defendant would pay the intermediate payment and the balance in full, without disregarding the fact that the defendant lawfully subrogated the payment of the intermediate payment and the payment of the remainder, which is not paid by the defendant. Thus, the court below's rejection of the plaintiff's contract termination statement on the ground that the court below's refusal of the payment

3. In addition, since the defendant's obligation to pay the remaining purchase price and the plaintiff's obligation to transfer ownership are concurrently performed, it is just that the court below accepted the defendant's claim for counter-performance of the ownership transfer registration in repayment of the remaining price, and there is no reason to argue that the registration of ownership transfer can be filed after the payment is made first.

4. Finally, the court below revoked the judgment of the court of first instance and dismissed the plaintiff's claim as to the conjunctive claim. The plaintiff's conjunctive claim can be deemed to be included in the main claim as the conjunctive claim for the main claim, and it is clear that the court below rejected the conjunctive claim for the main claim in its reasoning. Thus, the court below's cancellation of the judgment of first instance and the order dismissing the main claim does not contain the purport that the conjunctive claim for the main claim is dismissed (see Supreme Court Decision 91Da14604 delivered on October 11, 191, 191). Thus, there is no reason to see this.

5. Therefore, the appeal is dismissed and all 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 Jeong Jong-ho (Presiding Justice)