2014Da78126 User Fees

Sung Industrial Company, Inc.

A

Daejeon District Court Decision 2014Na497 Decided September 26, 2014

April 9, 2015

The part of the lower judgment against the Defendant regarding the payment of money exceeding KRW 20,000 shall be reversed, and that part of the case shall be remanded to the Daejeon District Court Panel Division.

The grounds of appeal are examined.

1. As to the grounds of appeal as to the illegality of the court organization, even if the presiding judge who participated in the first instance court's extradition lawsuit between the plaintiff and the defendant with respect to the artist of this case participated again in the original instance of this case, it cannot be viewed that the judge who is not allowed to participate in the judgment pursuant to the "law, such as the ground for exclusion, is involved in the judgment." This part of the grounds of

2. As to the ground of appeal on the establishment of tort liability

A. According to the reasoning of the judgment below and the records, the plaintiff sold the factory, etc. of this case to the defendant on July 6, 2009 and delivered it on August 20, 2009, and the head of the factory of this case did not collect it despite the establishment of the bar in this case owned by the plaintiff. After that, there was a dispute as to whether the house in this case is included in the object of the sales contract, the plaintiff filed a lawsuit against the defendant for delivery based on the ownership of the house in this case, and the defendant respondeded to the claim that the house in this case was included in the object of the sales contract, and eventually, the plaintiff was delivered the house in this case to the defendant on October 11, 2012, and the plaintiff did not refuse or interfere with the collection of the house in this case until November 6, 2013 after the delivery of the factory in this case. However, even after examining the records, the plaintiff did not refuse to take any measure of collection or collection of evidence against the defendant in this case.

B. In light of the above facts, the Plaintiff appears to have delivered the instant tea at the time of delivering the factory, etc. to the Defendant, and there is no evidence to deem that any unlawful act was involved in the process of delivering the instant tea, and even thereafter, it is difficult for the Plaintiff to avoid the possibility that the Plaintiff would have permitted the Defendant’s possession of the instant tea without its title. Thus, even if the Defendant occupied the instant tea without its title, it cannot be readily concluded that the commencement of possession was unlawful or that the possession constitutes an illegal possession immediately. Furthermore, insofar as the Plaintiff transferred the factory, etc. of this case, which is the object of sale, to the Defendant, without any specific cost, without any evidence to deem that the Defendant could have returned the instant tea without any cost or that the Defendant agreed to return it, and the Defendant can be concluded to have agreed to collect the Plaintiff’s seal in cooperation with the Plaintiff to collect it, and thus, the Plaintiff cannot be deemed to have rejected the Plaintiff’s collection of the Plaintiff’s specific intent or the Defendant’s unlawful possession without any specific consent to collect it.

C. Nevertheless, the lower court acknowledged the facts as indicated in its holding, and determined that the Defendant interfered with the Plaintiff’s exercise of ownership by occupying the instant cater without a justifiable title from August 20, 2009 to November 6, 2013, which is the delivery date of the instant factory, etc., and thus, held that it is liable for compensating the Plaintiff for damages incurred by the Plaintiff. In so doing, the lower court erred by misapprehending the legal doctrine on the nature and form of possession, which led to the failure to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment. Accordingly, the part of the lower judgment that corresponds to the entire scope of the Defendant’s appeal

3. Conclusion

Therefore, the part of the judgment of the court below against the defendant regarding the payment of the amount exceeding twenty thousand won is reversed, and that part of the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Jae-sik et al.

Justices Park Sang-hoon

Justices Cho Jong-hee