[1] The exercise of the court's right of explanation and its limitation

[2] In a case where a person primarily seeks implementation of the procedure for ownership transfer registration and seeks implementation of the procedure for ownership transfer registration as a preliminary repayment of money, whether the said preliminary claim is a preliminary claimant for a lawsuit (negative)

[1] The court's exercise of the right to explanation is to point out the contradictions in the parties' arguments or to give an opportunity to correct or supplement them when incomplete or unclear points exist, and to urge the submission of evidence as to the facts of dispute. Thus, it is against the principle of pleading to suggest the requirement of legal effect which the parties did not assert, or the independent means of attack and defense, and to recommend the submission thereof. It goes beyond the limit of the exercise of the right to explanation.

[2] In a case where a person primarily seeks implementation of the procedure for ownership transfer registration and seeks implementation of the procedure for ownership transfer registration as a preliminary repayment of money, the above preliminary claim is only a claim to reduce the main claim in quality, and the subject matter and the cause of the claim are completely identical to the main claim, and thus, it cannot be viewed as a preliminary claim in a lawsuit.

[1] Article 126 of the Civil Procedure Act / [2] Article 230 of the Civil Procedure Act

[1] Supreme Court Decision 95Da2798 delivered on February 9, 1996 (Gong1996Sang, 911), Supreme Court Decision 95Da27349 delivered on February 28, 1997 (Gong1997Sang, 889), Supreme Court Decision 96Da4067, 40684 delivered on April 25, 1997 (Gong1997Sang, 1570), Supreme Court Decision 97Da39742 delivered on December 26, 197 (Gong198Sang, 495) / [2] Supreme Court Decision 71Da1313 delivered on February 29, 197 (Gong201, 201-121, 1201)

Plaintiff

Defendant

Seoul High Court Decision 97Na51492 delivered on November 10, 1998

The appeal is dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

1. As to the misapprehension of legal principles as to the non-exercise of right to ask for seat and simultaneous performance

The court’s exercise of the right to ask for Elucidation refers to giving a party an opportunity to correct or supplement his/her assertion when there is any inconsistency or incomplete or unclear part thereof, and urging a party to submit evidence of the facts of dispute. The solicitation of submission by suggesting facts of legal effect which the party did not assert, or independent means of attack and defense, is contrary to the principle of pleading, and it goes beyond the limit of the exercise of the right to ask for Elucidation (see, e.g., Supreme Court Decision 95Da27998, Feb. 9, 196).

Therefore, in this case where the defendant asserted that the registration of ownership transfer of the forest of this case cannot be completed until the non-party 1 was paid the amount of KRW 57,00,000 paid to non-party 2 without cancelling the exchange contract of this case and damages related thereto under the premise that the contract of this case remains in force with the non-party 1, it cannot be said that the court below failed to exhaust all necessary deliberations by failing to exercise its right of explanation on the ground that the non-party 1 did not explain to the defendant whether to cancel the exchange contract of this case, or that the non-party 1 committed an unlawful act of misunderstanding the legal principles of concurrent performance defense. The ground for appeal pointing this out cannot be accepted.

2. As to the misapprehension of legal principles as to the conjunctive claim

With respect to the forest land of this case, the plaintiff primarily sought the implementation of the procedure for the transfer registration of ownership without any conditions, and sought from Nonparty 1 to carry out the procedure for the transfer registration of ownership at the same time with the payment of KRW 30,000,000. However, the above preliminary claim is merely a claim to reduce the main claim in quality, and the object and the cause of the claim are entirely identical to the main claim, and thus, it cannot be deemed a preliminary claim in the lawsuit (see, e.g., Supreme Court Decision 90Nu1120, May 28, 1991).

Therefore, the court below held that the above preliminary claim is included in the primary claim, and did not determine it separately, and there is no error of law by beginning the subject matter of lawsuit as otherwise alleged in the ground of appeal. This part of the ground of appeal cannot be accepted.

3. On the violation of the rules of evidence and incomplete hearing

Examining the reasoning of the judgment below in light of the records, the court below agreed on the defendant's defense that the non-party 1 could not respond to the plaintiff's claim before being paid 304,303,120 won in total, including the loan interest, 71,713,120 won, and 9,150,000 won, which was paid in addition to the non-party 2's ownership transfer registration of the forest of this case for the non-party 1, and damages for delay from April 1990, and 16,440,000 won, which were paid in addition to the non-party 1's purchase price, and the non-party 1 agreed to pay 57,00,000 won for the non-party 1's additional payment, and the non-party 1's non-party 1's non-party 1's non-party 1's non-party 1's non-party 300,000 won for additional payment delay.

4. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the defendant who is the appellant. It is so decided as per Disposition by the assent of all participating Justices.

Justices Jeong Jong-ho (Presiding Justice)