[1] In a case where the defendant appealed against the judgment of the court of first instance which accepted the primary claim, whether the conjunctive claim is transferred (affirmative), and in a case where the appellate court rejected the primary claim cited in the court of first instance, whether the subsequent preliminary claim shall be tried (affirmative)

[2] In a preliminary consolidation, whether a judgment is legally permissible in a part of the conjunctive claim, such as accepting only the conjunctive claim, rejecting only the main claim, and rejecting only the main claim (negative), and where a judgment that did not judge the conjunctive claim while rejecting the main claim, whether the part of the conjunctive claim, for which the judgment was omitted, is transferred to the appellate court (affirmative)

[3] The case holding that in a case where the defendant appealed against the judgment of the first instance which accepted part of the plaintiff's main claim and dismissed all of the conjunctive claim, and the appellate court revoked the judgment of the first instance and dismissed the plaintiff's main claim, the appellate court shall make a preliminary claim related to the main claim which the appellate court dismissed and judged as the main claim

[1] The preliminary combination of claims is a combination of claims seeking a trial on the conjunctive claim (the second claim) under the condition that the acceptance of the conjunctive claim (the second claim) will not be accepted among several joined claims. In the case of such preliminary combinations, a trial shall be conducted according to the order attached by the plaintiff, and in the case of rejection of the main claim, a trial on the conjunctive claim shall be conducted according to the order of priority attached by the plaintiff, and in the case of rejection of the main claim, a trial on the conjunctive claim shall be conducted, but in the case of acceptance of the main claim, there is no need for a trial on the subsequent conjunctive claim. Therefore, the judgment accepting the main claim shall be a judgment citing the main claim by the defendant, which has not been tried at the first trial, and where the appellate court rejects the main claim cited by the first instance court, the

[2] In the case of a preliminary consolidation, several claims are indivisiblely combined into one litigation procedure, and thus, a part of the judgment, such as accepting only the conjunctive claims, rejecting only the main claims, and not rendering the judgment on the conjunctive claims, is contrary to the nature of the preliminary consolidation, and it is legally not permissible. Nevertheless, where a judgment was rendered without judging the conjunctive claims while rejecting the main claims, if an appeal is filed against the judgment, the conjunctive claims for which the judgment was omitted shall be transferred to the appellate court, and it shall not be deemed that the part falls under the omission of the judgment and shall not be deemed to be continuing

[3] The case holding that in a case where the defendant appealed against the judgment of the court of first instance which accepted part of the plaintiff's main claim and dismissed all of the conjunctive claim, and the appellate court revoked the judgment of the court of first instance and dismissed the plaintiff's main claim, the appellate court shall make a preliminary claim related to the main claim which is dismissed as the subject of the judgment of first instance

[1] Articles 230 and 377 of the Civil Procedure Act / [2] Articles 198(1), 230, 362, 377, and 395 of the Civil Procedure Act / [3] Articles 230 and 377 of the Civil Procedure Act

[1] Supreme Court Decision 94Da31624 delivered on February 10, 1995 (Gong1995Sang, 1306) / [2] Supreme Court Decision 80Da1881, 1882 delivered on April 14, 1981 (Gong1981, 13897), Supreme Court Decision 88Da10647 delivered on September 26, 1989 (Gong1989, 1549), Supreme Court Decision 92Da18283 delivered on October 13, 1992 (Gong192, 3128), Supreme Court Decision 9Da50422 delivered on January 21, 200 (Gong200, 1389Da494595 delivered on September 26, 195) / [3] Supreme Court Decision 95Da196495 delivered on September 26, 1995 (Gong2945)

Yellow Freeboard et al. (Attorney Lee Yong-soo, Counsel for the plaintiff-appellant)

Gomo and one other (Law Firm Sam, Attorneys Kim Il-young et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 97Na37175 delivered on April 16, 1998

The part of the judgment of the court below regarding the conjunctive claim against the defendant Go-Mon is reversed, and that part of the case is remanded to the Seoul High Court. The remaining appeals against the plaintiffs Go-Mon and appeals against the defendant Go-Mon teaching institutes are dismissed. The costs of appeal between the plaintiffs and the defendant educational institutes are assessed against the plaintiffs.

1. Regarding ground of appeal No. 1

According to the reasoning of the judgment below, the court below rejected the plaintiffs' assertion that the non-party 1 and the non-party 1 had a duty to establish the mortgage of this case under the name of the non-party 1 and the non-party 3, who had forged the relevant documents to establish the mortgage of this case, and that the non-party 1 had a duty to establish the mortgage of this case to secure the whole of the establishment of the mortgage of this case, which was the owner of the forest of this case, or the share of 2/3 of the plaintiffs, at the time of cancellation, and that the non-party 1 had a duty to express his consent to the non-party 1 and the non-party 1 had a duty to establish the mortgage of this case under the name of the non-party 1 and the non-party 1's right to establish the mortgage of this case to secure the ownership of the non-party 1 and the non-party 2's right to establish the mortgage of this case with the non-party 1 and the non-party 1's right to purchase the forest of this case.

In light of the records, the above fact-finding and judgment of the court below are acceptable, and there is no error of law such as misconception of facts due to violation of the rules of evidence, incomplete deliberation, probative value of disposal documents, and misapprehension of legal principles as to expressive representation under Article 126 of the Civil Act, as alleged

The ground of appeal on this point is without merit.

2. Regarding ground of appeal No. 2

According to the records, the plaintiffs' legal representative stated on April 3, 1997 an application for modification of the purport and cause of the claim on April 10, 1997, including the purport that the plaintiffs added the claims claiming the implementation of the procedure for the registration of cancellation of ownership transfer registration under the above defendant's name concerning the forest of this case by taking in sequence the defendant Go-Jo and the non-party 1 with respect to the defendant school juristic person's Go-Jo and the non-party 1 in order, and therefore, it cannot be accepted the allegation in the grounds of appeal

3. As to the third ground for appeal

According to the reasoning of the judgment below, the court below determined that, at the time of purchasing the forest of this case with Defendant 1, Nonparty 1 had already been aware of real estate speculation at the time of purchasing the forest of this case from Defendant 1, or that, at the time of selling the forest of this case to the plaintiffs, the act of purchasing the forest of this case was subject to tracking investigation by the prosecutor's office and tax authorities or collection due to the unpaid transfer income tax. The purpose of purchasing the forest of this case was to obtain marginal profits from resale. In addition, when purchasing the forest of this case, the contract was concluded to exclude himself from the purchaser's name and to sell the forest of this case only under the name of Park Young-nam, without indicating the seller's name as the non-party 1, the seller's name was stated as the non-party 1, and eventually, the plaintiff did not have an intention to complete the registration of ownership transfer under the name of the plaintiffs, after completing the registration of ownership transfer from Defendant 1's name, the plaintiffs had no intention to complete the registration of ownership transfer with the plaintiffs' land transaction permission for this case.

In light of the records, we affirm the above judgment of the court below, and there is no error of law in the misapprehension of legal principles as to land transaction permission, as alleged in the grounds of appeal.

The argument in the grounds of appeal on this point is not acceptable.

4. As to the fourth ground for appeal

A. According to the records, the plaintiffs sought implementation of the procedure for recovery registration on the ground that the registration of creation of the mortgage of this case was illegally cancelled. (1) At the same time, in subrogation of the non-party 1, the plaintiffs sought implementation of the procedure for land transaction permission as to the purchase part of the forest of this case on April 12, 191 between the non-party 1 and the non-party 1 on the ground that the registration of creation of the mortgage of this case was illegally cancelled, and (2) as to the part of the forest of this case on behalf of the non-party 1 on behalf of the non-party 1, the compensation for damages caused by the tort that occurred in double sale, (2) return of unjust enrichment caused by cancellation of the right to collateral security, and (3) return of the purchase price due to the impossibility of execution of the sale contract, etc., the first instance court accepted the part of the plaintiffs' share 2/3 among the main claims, and rejected the remainder of the claim, and the plaintiffs did not appeal against the part of the plaintiff's claim against the plaintiff.

B. However, the preliminary combination of claims is a combination of claims seeking a trial on the conjunctive claim (the second claim) under the condition that the acceptance of the conjunctive claim (the second claim) will not be accepted among several joined claims. In the case of such preliminary consolidations, the judgment shall be made according to the order attached by the plaintiff, and when rejecting the main claim, the judgment shall be made according to the order of priority, and when accepting the main claim, it is not necessary to adjudicate on the subsequent conjunctive claim. Therefore, the judgment accepting the main claim is the judgment referring to the judgment referring to the judgment referring to the judgment referring to the first claim, which has not been tried at the court of first instance, and where the appellate court rejects the main claim which has not been tried at the court of first instance.

In addition, since several conjunctive claims are indivisible in one proceeding, some of the judgments such as accepting only the conjunctive claims, rejecting only the main claims, and not rendering a judgment on the conjunctive claims are legally impermissible. Nevertheless, where an appeal against the judgment is not rendered while rejecting the main claims, the part of the conjunctive claims for which the judgment was omitted shall be transferred to the appellate court, and it shall not be deemed as continuing to be the case where the judgment was omitted. On the contrary, where the judgment on the conjunctive claims was omitted even though the court below rejected the main claims, the omitted part of the conjunctive claims shall be deemed to be still pending in the court below, and thus, the appeal against this part shall be deemed to be unlawful (see, e.g., Supreme Court Decisions 80Da18181, 80Da1882, Apr. 14, 1981; 88Meu10647, Sept. 26, 1989; 200Da329489, Feb. 13, 1982).

C. However, while the plaintiffs did not clearly state their intent as to whether the conjunctive claim in this case was the conjunctive claimant for the entire main claim or whether the conjunctive claim was the conjunctive claimant for part of the main claim in this case, if the plaintiffs won part of the conjunctive claim in the first instance trial, the part of the conjunctive claim in relation to the winning part cannot be the subject of the first instance trial unless there are special circumstances. Thus, even if the first instance court determined that the conjunctive claim cannot be the subject of the judgment, it shall not be effective (see, e.g., Supreme Court Decisions 94Da29065, Jan. 24, 1995; 94Da62017, Jul. 25, 1995).

In light of the relationship between the claim for restoration registration of the registration of the establishment of a neighboring mortgage which was illegally cancelled and the claim for land transaction permission pursuant to a sale and sale contract, if the first instance court partly accepted the claim for restoration registration of the establishment of a neighboring mortgage among the main claims of this case, it shall be deemed that the first instance court was not subject to adjudication (the first instance court dismissed the claim for land transaction permission among the main claims of this case, and dismissed the conjunctive claim of this case. The first instance court seems to have dismissed the conjunctive claim of this case among the main claims of this case). The lower court shall file an appeal against some winning part of the plaintiffs among the claims for restoration registration of the establishment of a neighboring mortgage of this case, and the lower court shall determine it as subject to adjudication based on the conjunctive claim related to this part where the lower court revoked the judgment of the first instance court and dismissed the main claims of the plaintiffs corresponding to the revoked part.

D. Nevertheless, the court below did not make any judgment on the conjunctive claim for the reasons indicated in its holding without clearly disclosing the relationship between each of the claims in this case by exercising the right of explanation. Thus, the court below erred by violating the duty of explanation or by misapprehending the legal principles on the preliminary consolidation of claims, which affected the conclusion of the judgment. The ground of appeal assigning this error is with merit.

5. Therefore, the part of the judgment of the court below as to the conjunctive claim against the defendant Go-ray is reversed, and that part of the case is remanded to the court below. The remaining appeal against the defendant Go-ray and the appeal against the defendant Go-ray is dismissed in entirety. The costs of appeal between the plaintiffs and the defendant school foundation are assessed against the plaintiffs. It is so decided as per Disposition by the assent of all participating Justices on the bench.

The final judgment of the Chief Justice of the Supreme Court (Presiding Justice) shall be delivered with the assent of all Justices Song Jin-hun who reviewed the appeal of this case, with the assent of all Justices Lee Jin-hun.