[1] In a case where a party who lawfully filed a counterclaim in the first instance trial alters the counterclaim in exchange for an appellate trial, whether such alteration is permitted (affirmative with qualification), and the scope of permission for alteration of the claim

[2] In a case where Gap corporation operating the excessive import business filed a counterclaim against Eul et al. at the first instance court, and Eul et al., as the representative director or partner of Gap corporation and Eul et al. operated the excessive points of the real estate leased by Eul et al., and did not return the above real estate without any justifiable reason while Gap et al. operated the excessive points of the real estate leased by Eul et al., and thereby damaged Gap corporation's excessive employees, the case holding that the court below's previous claim and new claim were justifiable to review and determine the changed claim on the grounds that "the claim for damages equivalent to the operating loss amount suffered by Gap et al." were changed in exchange for "the claim for damages caused by excessive damage" at the lower court, and therefore, it was justified to review and determine the changed claim

[1] In a case where a party who has lawfully filed a counterclaim in the first instance trial alters the counterclaim in exchange for an appellate trial, the alteration of the claim is also allowed unless the altered claim and the previous claim are identical to the substantive issues and no alteration is made to the foundation of the claim. Meanwhile, the alteration of the claim can be made until the time of the closure of pleadings in the fact-finding trial unless the alteration of the claim is manifestly delayed, unless it is a modification to the foundation of the claim, and the alteration of the claim and the cause of the claim merely differs in the same life or in

[2] In a case where Gap corporation operating the excessive import business filed a counterclaim against Eul et al. at the first instance court, and Eul et al. did not return the above real estate without justifiable grounds while operating the excess points leased by Eul et al. as the representative director or partner Eul et al. as Eul et al., and thereby damaged Gap corporation's excessive employees, the case affirming the court below's examination and judgment on the changed claim based on the following reasons: (a) claims for transfer of real estate; (b) claims for transfer of movable property such as Eul et al.; and (c) claims for damages equivalent to the operating losses suffered by Gap et al.; and (b) claims for damages equivalent to the operating losses suffered by Eul et al. were changed in exchange for "damage claims caused by excessive damage" in comparison with the claims before and after the change, and thus, (c) the previous claims and new claims seek compensation for damages suffered by Eul et al. while occupying the real estate and movable property without permission; and (d) there were different methods for resolution in disputes over the same living or the same economic interests.

[1] Article 262 of the Civil Procedure Act / [2] Article 262 of the Civil Procedure Act

[1] Supreme Court Decision 97Da4416 delivered on April 24, 1998 (Gong1998Sang, 1450)

Plaintiff 1 and one other (Law Firm Tael, Attorneys Gyeong-ho et al., Counsel for the plaintiff-appellant)

Defendant Co., Ltd. (Attorney Yang Du-seop et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2008Na8998, 9004 decided February 12, 2010

All appeals are dismissed. The costs of appeal are 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. As to the ground of appeal on the principal lawsuit

A. On the violation of the principle of free evaluation of evidence concerning the payment of remuneration and salary

According to the reasoning of the judgment below, after compiling the adopted evidence, the court below acknowledged the facts as stated in the judgment, and determined that the plaintiff (Counterclaim defendant; hereinafter "the plaintiff") 1 was paid all the remuneration from the defendant company to December 2, 2005, and the plaintiff 2 was paid all the benefits from the defendant company to December 2, 2006. Examining the evidence duly adopted by the court below and the first instance court in light of the records, the judgment below is just and acceptable, and there is no violation of law of free evaluation of evidence in violation of logical and empirical rules, as otherwise alleged in the grounds of appeal.

B. As to the misapprehension of legal principles on retirement allowance claims

The court below rejected the plaintiff 2's claim for retirement allowance on May 2007, since there is no dispute between the parties that the defendant company ordinarily employs not more than four workers, according to the former Labor Standards Act (amended by Act No. 7379 of Jan. 27, 2005) and the relevant Acts and subordinate statutes, such as the Guarantee of Workers' Retirement Benefits Act, etc. The court below rejected the plaintiff 2's claim for retirement allowance on the ground that there is no room to apply the relevant provisions to the plaintiff 2 who retired on May 2007. In light of the relevant legal principles and records, the judgment of the court below is just and acceptable. Meanwhile, the argument in the grounds of appeal that the plaintiff 2 has a claim for retirement allowance under Article 4 (2) of the labor contract, is a new argument that was made only

2. As to the ground of appeal on the counterclaim

A. As to the misapprehension of legal principles as to the legality of changing the counterclaim

Where a party who has lawfully filed a counterclaim in the first instance trial alters a counterclaim in exchange for an appellate trial, the modification of the claim is permitted unless the changed claim and the previous claim are identical to the substantive issues and there is no change in the foundation of the claim. Meanwhile, the modification of the claim can be made until the time of closing argument in the fact-finding court to the extent that there is no change in the foundation of the claim unless the delay in litigation procedures is obvious, and the modification of the purport of the claim and the cause of the claim merely differs in the same life or in the same dispute concerning economic interests, and there is no change in the resolution method (see Supreme Court Decision 97Da4416, Apr. 24, 1998, etc.)

According to the records, the defendant in the first instance court revealed that ① the demand for delivery of each of the real estate in this case, ② the request for delivery of movable property including those who had been under custody of the above real estate, ③ the plaintiffs did not possess and return the above real estate and movable property without permission, ④ the claim for damages equivalent to the amount of business loss suffered by the defendant company, ④ the plaintiffs embezzled as wages, but the court below reached the judgment below, and ③ the above claim was changed in exchange for compensation for damages due to damage caused by excessive damage. In comparison with the claim before and after the change, the previous claim and the new claim seek compensation for damages suffered by the defendant company while the plaintiffs occupied each of the real estate and movable property in this case without permission, and there are different methods of resolution in the same living facts or the same economic interest. Accordingly, it is justifiable to review and determine the claim for change in exchange, and there is no error of law by misapprehending the legal principles on the legality of the change in the claim, as otherwise alleged in the ground of appeal.

B. As to the misapprehension of legal principles as to the liability for damages

After compiling the adopted evidence, the lower court acknowledged the facts as indicated in its reasoning, and determined that Plaintiff 1 was liable to compensate the Defendant for damages of KRW 109,078,935, which is the total market value of the damaged party.

First, according to the reasoning of the judgment below, and evidence duly adopted by the court below and the first instance court, the plaintiff 1 occupied each of the real estate of this case without any justifiable reason and did not return it to the defendant company. The plaintiff 1 did not supply electricity to the defendant company since March 11, 2008 due to the closure of the access to the above real estate and the suspension of the supply of electricity by failing to pay electricity charges. The plaintiff 1 failed to operate air conditioners in the second real estate of this case since around that time. The plaintiff 1 did not supply air conditioners in the second real estate of this case to the defendant company of this case. The plaintiff 1 did not arbitrarily inform the defendant company that the supply of electricity was obstructed, because it was well known that if the plaintiff 1 did not supply electricity to the defendant company's representative director, the plaintiff 1 did not arbitrarily cause damage to the plaintiff 1 and the second real estate of this case, and the plaintiff 2 and the second real estate of this case were not liable for damages to the defendant company of this case.

The judgment below to the same purport is just, and there is no violation of law by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, as otherwise alleged in the ground of appeal.

Meanwhile, the above evidence and records revealed that the market price of the No. 1 real estate of this case exceeds 70 million won and the market price of No. 2 real estate of No. 2 of this case exceeds 3276 diseases exceeding 40 million won. Thus, the court below did not deem that the total amount of the market price of No. 2 of the above No. 2 of this case exceeds 109,078,935 won. However, as long as the amount of damages recognized by the court below does not exceed the actual amount of damages, the court below did not err by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules or by misapprehending the legal principles on the calculation of damages, which affected the conclusion of the judgment, as otherwise alleged in the ground of appeal. Further, even if examining the records, there is no evidence to find that the damage was caused or expanded by the care of the defendant company of this case, the victim, and therefore, it cannot be accepted in this part of the grounds of appeal.

3. Conclusion

Therefore, all appeals are dismissed, and the 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 Park Poe-dae (Presiding Justice)