(영문) 대법원 2017.11.29.선고 2014다31837 판결

1. The defendant and the plaintiff network A's attorney taking over of the lawsuit of J,K, K, L, M, N, P, P, Q, Q, Q, R, U, Z, plaintiff network AB, AB, AC, AD, AE, AE, AE, AE, AE, AF, AF, AG, AH, AB, AB, AB, AB, AB, AB, AB, AB, AB, AB, AB, AB, AB, AB, AB, AB, AB, AB, AB, AB, AB, AB, AB, AB, AB, BB, BB, B, B, B, B, B, B, B, B, B, B, B, B, B, B, B, B, B, B, B, B, B, AB, AB, AB, and B, the plaintiff network AU taking over the lawsuit of the plaintiff, B.

2. The costs of appeal between the plaintiffs and the defendant are assessed against each party, and the remaining costs of appeal between the plaintiffs and the defendant are assessed against the defendant.

Reasons

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. As to the Defendant’s grounds of appeal as to the existence of the right of representation in a lawsuit, the judgment on the party’s assertion and other means of offence and defense should be indicated to the extent that the main text is recognizable to be justifiable, and there is no need to determine all of the parties’ allegations or means of offence and defense (Article 208 of the Civil Procedure Act). Therefore, even if no specific and direct judgment on the party’s assertion is indicated in the court judgment, it cannot be said to be an omission of judgment if it is possible to find out that the assertion was cited or rejected in light of the overall purport of the reasoning of the judgment. Furthermore, even if the court did not make a decision, if it is obvious that the assertion would be rejected even if it was not actually determined, it cannot be said that there was an error of omission of judgment due to lack of influence on the conclusion of the judgment (see, e.g., Supreme Court Decision 2009Da8863

According to the records, the plaintiffs can be found to have lawfully delegated their legal representation to BH, BI, and BJ in the court below. Thus, it is justifiable that the court below recognized them as the plaintiffs' legal representative. Contrary to the defendant's ground of appeal, there is no error of law by misapprehending the legal principles regarding the granting of the power of attorney, or by omitting judgment as to the existence of the power of attorney

2. As to the defendant's ground of appeal on whether to withdraw the lawsuit and its validity

According to the reasoning of the judgment below, the court below determined that the plaintiffs' request for fixed-term designation is reasonable, since the plaintiff's request for fixed-term designation is not based on the intent of the parties subject to the lawsuit submitted in the court of first instance or their heir, or is based on criminal punishment, such as coercion, illegal confinement, assault, or cruel conduct by investigation agency, and thus, it is deemed null and void on the ground that the plaintiff's request for fixed-term designation is reasonable.

In light of the records, the above judgment of the court below is just, and contrary to the defendant's grounds of appeal, there were no errors in the misapprehension of facts beyond the bounds of the principle of free evaluation of evidence against logical and empirical rules, or in the misapprehension of legal principles as to the effect of withdrawal of a lawsuit, or omission of

3. As to the plaintiffs' grounds of appeal on the part of the claim for ownership transfer registration

A. The former Farmland Act (amended by Act No. 4817 of Dec. 22, 1994 and enforced January 1, 1996; hereinafter referred to as the "former Farmland Act") shall abolish the Act on Special Measures for the Adjustment of Farmland Reform and Farmland Reform Projects (hereinafter referred to as the "Special Measures Act") in Article 2 of the Addenda. Article 3 of the Addenda of the Act provides, "The repayment and registration of farmland for which the redemption and registration of farmland are not completed under the previous Farmland Reform Act and the Special Measures Act at the time of entry into force of this Act shall be completed within 3 years from the enforcement date of this Act. Accordingly, according to this provision, there is no ground provision for repayment of farmland due to the expiration of 3 years from the date of entry into force of the Farmland Act, and even after the repayment of farmland, the payment of farmland cannot be subject to the Farmland Reform Act and the Special Measures Act, and thus, the payment of farmland cannot be made within 200 years from the enforcement date of the previous Act.

Meanwhile, Article 150(1) of the Civil Act provides that if a party who is at a disadvantage due to the fulfillment of a condition interferes with the fulfillment of the condition against the good faith and good faith, the other party may assert that the condition has been fulfilled. However, the above provision applies only to the conditions voluntarily added by the parties, and the so-called legal condition, which is stipulated as an effective requirement, may not be applied or applied by analogy

After compiling the adopted evidence, the lower court acknowledged the facts as indicated in its reasoning, and dismissed the Plaintiffs’ claim for ownership transfer registration based on the completion of repayment against the Defendant, as stated in paragraph (1) of this Article, on the ground that the Plaintiffs, or their successors, were unable to complete the repayment of farmland in relation to the distributed farmland of this case until December 31, 1998, which became three years after the enforcement date of the former Farmland Act, and that even if the farmland price was deposited in the amount corresponding to the farmland of this case, it cannot be subject to the Farmland Reform Act and the Special Assistance Act, and thus, it became impossible to acquire ownership under the provisions of the Act.

In light of the above legal principles and records, the above judgment of the court below is just, and there is no error of law by misunderstanding the legal principles on interpretation and application of Articles 2 and 3 of the Addenda of the Farmland Act and Article 150 of the Civil Act, and there is a need to modify the above 200Da45778 decision, or Articles 2 and 3 of the Addenda of the Farmland Act do not constitute unconstitutionality in violation of Article 13(2) of the Constitution, contrary to the plaintiffs' grounds of appeal as stated in paragraph (1) of this Article.

B. In addition, according to the reasoning of the judgment below and the records, since the plaintiffs of the first instance court or their successors are unable to acquire ownership of the distributed farmland of this case due to the repayment of farmland due to the failure to complete the repayment of farmland within the period as stipulated in Article 3 of the Addenda of the former Farmland Act, it shall not be deemed that the defendant gains profits without any legal ground by making the defendant not to transfer ownership of the distributed farmland of this case, separate from the defendant liable for damages.

Therefore, although the court below did not determine the plaintiffs' assertion stated in Paragraph 1 of the disposition that the defendant is liable to implement the procedure for ownership transfer registration of the distributed farmland of this case as unjust enrichment return, it is clear that it is a case of rejection, it cannot be viewed that the above error of the court below affected the conclusion of the judgment. The plaintiffs' assertion in Paragraph 1 of the disposition is without merit.

4. As to the Plaintiffs and Defendant’s grounds of appeal on the claim for damages

A. As to the occurrence of liability for damages and extinctive prescription

According to the reasoning of the judgment of the court below and the records, the plaintiffs of the first instance court or their successors added a claim for damages at the court below after the second remand judgment, and the court below acknowledged the facts as stated in its reasoning after compiling the newly submitted evidences. The court below determined that the plaintiffs of the first instance court were liable to compensate for the damages suffered by them pursuant to the former part of Article 2 (1) of the State Compensation Act, since the plaintiffs of the first instance court or their successors, who suffered losses due to a series of illegal acts from May 1, 1953 to October 1, 1979, even if they were lawfully distributed the farmland of this case.

Furthermore, the court below, after compiling the adopted evidence, accepted the plaintiffs' defense that the defendant's defense of extinctive prescription is not permissible as an abuse of rights against the principle of good faith, and rejected the defendant's defense of extinctive prescription. In light of the relevant legal principles and records, the above judgment of the court below is just and acceptable, and there is no error of law by misunderstanding the legal principles on the binding force of the judgment remanded and the abuse of rights of the defense of extinctive prescription, contrary to the defendant's

B. Regarding the scope of liability for damages

After comprehensively taking account of the adopted evidence, the court below acknowledged the facts as stated in its decision. The plaintiffs would have acquired the distributed farmland of this case as a receiver of the distributed farmland of this case without the defendant's series of illegal acts, but the plaintiffs could not acquire it due to the defendant's illegal acts, and the damages therefrom could not be acquired due to the plaintiff's illegal acts since December 31, 1998. Furthermore, the court below determined that the damages suffered by the plaintiffs were realized due to the plaintiff's impossibility of acquiring ownership due to the payment of farmland under Article 3 of the Addenda of the Farmland Act. Furthermore, the court below determined that the damages suffered by the plaintiffs were the amount equivalent to the market price calculated based on the "before" or "responding at the time of distributing the land of this case at the point of December 31, 1998." The court below calculated the amount of damages according to its decision based on the market

In light of the relevant legal principles and records, the above judgment of the court below is just and acceptable, and there is no error of law by misunderstanding the legal principles as to the calculation of damages, etc. as alleged in the plaintiffs and the defendant's grounds of appeal in the Disposition.

5. Conclusion

Therefore, all appeals by the plaintiffs as stated in paragraph (1) of this Article are dismissed, and the costs of appeal between the plaintiffs and the defendant are assessed against each party. The remaining costs of appeal between the plaintiffs and the defendant are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.