[1] Whether an appeal may be filed against a judgment that won the entire winning case (negative)

[2] The legal nature of the return of interest under Article 548(2) of the Civil Code (=return of unjust enrichment) and whether the interest rate under Article 3(1) of the Act on Special Cases Concerning Promotion, etc. of Legal Proceedings can be applied to the above interest (negative)

[3] Whether the interest rate under Article 3 (1) of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings shall apply from the day following the day when the complaint is served where a judgment ordering the return of money due to the cancellation of the contract is rendered (affirmative)

[4] Whether the principle of prohibition of disadvantageous alteration in a retrial is applied (affirmative)

[1] Since an appeal is sought to revoke or change a judgment disadvantageous to himself/herself in favor of himself/herself, the appeal against the judgment of the court below in favor of him/her cannot be permitted as there is no benefit of filing an appeal.

[2] Article 548(2) of the Civil Code provides that interest shall be added to the money that is returned upon the fulfillment of the duty to restore due to the termination of the contract from the date of the receipt of the money. The repayment of the above interest falls within the scope of the duty to restore, and it is not a compensation for losses arising from the delay of the duty to return unjust enrichment. Article 3(1) of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings provides that where a judgment ordering the performance of all or part of the monetary obligation is rendered, the interest shall not be applied to the statutory interest rate which is the basis for calculating the amount of damages resulting from the nonperformance of the monetary obligation.

[3] In a case where a lawsuit seeking the return of money is filed due to the cancellation of a contract and the performance of the duty to restore money is held liable for delay due to the delay in the performance of the duty to restore money, so in a case where a judgment ordering the return of money is rendered due to the performance of the duty to restore money, the interest rate under Article 3(1) of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings, which is a special provision concerning statutory interest rate that serves

[4] A new trial shall not be rendered more disadvantageous than the original final and conclusive judgment against the plaintiff, unless a new trial has the nature similar to that of an appeal, which is brought against the plaintiff.

[1] Articles 390 and 422 of the Civil Procedure Act / [2] Article 548 (2) of the Civil Act, Article 3 (1) of the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings / [3] Article 3 (1) of the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings / [4] Articles 415 and

[1] Supreme Court Decision 97Da22676 delivered on December 26, 1997 (Gong1998Sang, 403) / [2] Supreme Court Decision 94Da47728 delivered on March 24, 1995 (Gong1995Sang, 1731) Supreme Court Decision 95Da28892 delivered on April 12, 1996 (Gong1996Sang, 1504 delivered on June 9, 2000) (Gong200Da16275, 16282 delivered on June 23, 2000)

Plaintiff (Judgment of the court below)

Defendant (Reexamination Plaintiff)

Seoul High Court Decision 2001JNa192 delivered on October 18, 2001

The Plaintiff’s appeal as to the legal interest portion of KRW 80,00,000, which is the monthly rent of KRW 80,000, among the judgment below, shall be dismissed. Of the judgment below, the part against the Plaintiff (the Defendant) as to the damages for delay from June 1, 2003 to the full payment of KRW 570,000,00, which is the aggregate of the rent deposit, shall be reversed, and the corresponding Defendant (Re-Appellant)’s appeal shall be dismissed. The remainder of the appeal by the Plaintiff (the Defendant) and the appeal by the Defendant (Re-Appellant) shall be dismissed. The total costs of the lawsuit before and after the re-adjudication shall be four minutes, and the Plaintiff (the Defendant re-Appellant) and the remainder shall be borne by the Defendant (the Plaintiff).

1. Review of the records and the reasoning of the lower judgment reveals the following facts.

A. On August 1, 199, the plaintiff (the plaintiff, hereinafter referred to as "the plaintiff") filed a lease contract with the defendant (the plaintiff, hereinafter referred to as "the plaintiff") 9 Gohap 1574 on a 0-year basis from 0.0% to 0.0% of the annual rent of 9.0%, 10% of the annual rent of 0.0,000, 198, 1000, 1000, 1000, 1000, 1000, 300,0000, 150,0000,000, 150,000,000, 10,0000,000, 10,000,000,000,000,000,000,000,00,000 won, 10,000,00.

B. The court of the first instance recognized that only 80,00,000 won was paid on the monthly rent of December 23, 1998, and judged that the agreement for the penalty under the original lease was modified by the agreement on May 30, 1998, the defendant made a judgment that determined that the contract was cancelled by the agreement on May 30, 1998, and that as to ① the total sum of the rent deposit amounting to 570,000,000 won and the amount, from the date of each payment to June 30, 1998, the legal interest at the rate of 5% per annum under Article 548(2) of the Civil Act from the date of the payment to the date of the full payment, ② the damages for delay with the annual rate of 30,000,000 won under the agreement as of May 30, 1998, ② the damages for delay with the agreed rate of 5% per annum from the date following the decision to the date of the first instance.

C. On May 30, 1998, the court of appeal filed an incidental appeal with the Seoul High Court No. 2000Na20504, and the plaintiff filed an incidental appeal with the court of appeal on May 30, 1998 agreed that the above contract for the penalty as stipulated in the initial lease agreement and the damages for delay shall be deemed to have been liquidated damages. Since the amount of damages calculated by adding the damages for delay to the amount of KRW 570,000 per annum for the total amount of the rent deposit to KRW 50,000,000 is excessive, it is reasonable to reduce the amount by 20% per annum for the total amount of the rent deposit to KRW 50,000,000, the amount of the above rent deposit to KRW 80,000 per annum for the above 0,000,000 per annum for 0,000,000 per annum for the above lease deposit to KRW 50,000,000 per annum for the above 0.

D. The Defendant appealed to the Supreme Court Decision 2001Da4651 on March 12, 2001, but the Supreme Court rendered a judgment dismissing the appeal.

E. After doing so, the Defendant brought an action for retrial of this case on the ground that there was a ground for retrial in the judgment subject to retrial, since the testimony of Nonparty 1 and Nonparty 2, who was admitted as evidence of fact-finding in the judgment subject to retrial, was final and conclusive

F. Accordingly, the court below decided on May 30, 1998 that delayed payment of KRW 570,000 per annum for the total amount of KRW 570,000,000 for the above 30% of the lease deposit was a ground for retrial. However, there is no ground for retrial for the part on the monthly rent of KRW 80,000 among the judgment subject to retrial (including the legal interest portion on this money), and decided on the claim portion on May 30, 1998 among the judgment subject to retrial and the judgment of the court of first instance for retrial with the above 80,000,000 annual interest rate of KRW 50,000 for the above 50,000,000 for the above agreement, and dismissed the above part on the plaintiff's claim on the amount of KRW 650,000 for the above agreement and KRW 570,000 for the above 50,000,000 for each of the above 7,5000,000.

2. We examine the Plaintiff’s appeal as to the legal interest amounting to KRW 80,000,000 in advance payment of monthly rent among the judgment below.

Since an appeal is sought to revoke or change a judgment disadvantageous to himself, the appeal against the original judgment in full winning the appeal is not allowed as there is no benefit in filing a final appeal (see Supreme Court Decision 97Da22676, Dec. 26, 1997). Accordingly, the court below's dismissal of the defendant's request for retrial against the part concerning the monthly rent of KRW 80,000 (including the legal interest part concerning this money), among the judgment subject to a retrial, has clearly dismissed the defendant's request for retrial against the part concerning the monthly rent of KRW 80,000 (including the legal interest part concerning this money), and since there is no benefit in filing a final appeal, the appeal filed by the plaintiff who won in full winning the judgment of the original judgment with respect to the legal interest of KRW 80,000,000, which

3. We examine the Plaintiff’s remaining grounds of appeal.

Article 548(2) of the Civil Act provides that interest shall be added to the money that is returned upon the fulfillment of the duty to restore due to the rescission of the contract from the date of the receipt. The repayment of interest falls within the scope of the duty to restore, and it does not fall within the nature of the return of unjust enrichment. Article 3(1) of the Act on Special Cases Concerning Expedition, etc. of Legal Proceedings provides that where a judgment ordering the performance of all or part of the monetary obligation is rendered, the statutory interest rate which is the basis for calculating the amount of damages due to the nonperformance of the monetary obligation is a special provision. Thus, the above interest cannot be applied to the interest rate under Article 3(1) of the Act on Special Cases Concerning Expedition, etc. of Legal Proceedings, but (see Supreme Court Decision 200Da16275, 16282, Jun. 23, 200). In a case where a lawsuit seeking the return of money due to the performance of the duty to restore, the obligor is liable to restore due to the delay of the duty to restore.

However, the court below held that the agreement on May 30, 1998, which set the damages for delay of 570,000,000 won per annum for the total amount of the lease deposit, does not extend to the defendant on May 30, 1998. The court below did not apply the interest rate under Article 3 (1) of the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings for the period from November 6, 1999 to the date on which the defendant is liable for delay due to delay after being served with a copy of the complaint demanding the return of the above money, and applied the above provision to the statutory interest rate of 5% per annum under the Civil Act for the period from November 6, 1999 to the date on which the defendant is liable for delay (which is separate from the case where it is reasonable for the defendant to resist the existence or scope of the obligation, and the above provision is not applied until the decision of the court of fact).

However, since the Constitutional Court's decision of unconstitutionality on April 24, 2003 as to the "interest rate prescribed by the Presidential Decree" among Paragraph (1) of Article 3 of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings was made, and the above provision of the Act amended by Act No. 6868 on May 10, 203 and the main provision of Article 3 (1) of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings (amended by the Presidential Decree No. 17981 on May 29, 2003) applied the above legal interest rate of 20% per annum to the plaintiff's delayed interest rate of 30% per annum from June 1, 2003, which shall not affect the conclusion of the judgment below. Thus, the court below's decision of 10% per annum from the above revised legal interest rate of 15% per annum to the above revised by Act No. 3060, May 30, 1998 is justified.

4. We examine the defendant's grounds of appeal.

According to the reasoning of the judgment below, the court below found facts based on its adopted evidence, and found it as stated in its reasoning. The defendant shall be deemed to have delegated entirely to the non-party 3 with respect to the method of receiving the rent from the plaintiff and appropriating it for the construction cost. Although the non-party 3 received the rent from the plaintiff each month and received part of it in lump sum without appropriating it for the construction cost, this cannot be deemed as contrary to the defendant's delegation. Thus, in light of the records, the court below's fact-finding and decision are just, and there is no error in the misapprehension of legal principles as to the delegation authority, as otherwise alleged in the ground of appeal. The defendant's ground of appeal cannot be accepted.

5. Therefore, among the judgment below, the plaintiff's appeal as to the legal interest amounting to KRW 80,00,000 in the monthly rent of KRW 80,000 is dismissed. The part against the plaintiff as to the damages for delay from June 1, 2003 to the full payment rate of KRW 570,000,000, which is the total amount of the rent deposit, is reversed. This part is sufficient for the court to directly judge this part, and therefore, the defendant's appeal is dismissed. Since the judgment subject to a retrial as to this part is legitimate, the defendant's appeal is dismissed, the remaining appeal by the plaintiff and the defendant's appeal are all dismissed, and the total costs of the lawsuit before and after the retrial are four minutes, and the remainder is borne by the plaintiff, and it is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Jae- Jae (Presiding Justice)