2013Na66487 Compensation (as the case may be)

A person shall be appointed.

1. B

Attorney ○-○, et al.

2. C.

Seoul Southern District Court Decision 2012Gahap20117 Decided September 24, 2013

May 14, 2014

June 11, 2014

1. All appeals by the plaintiff (designated party) are dismissed.

2. The costs of appeal shall be borne by the plaintiff (the appointed party).

1. Purport of claim

Defendants jointly and severally (the designated parties, hereinafter referred to as the “Plaintiff”) and the appointed parties D 148, 208, 00

00 won and 20% per annum from the day after the delivery of the complaint of this case to the day of complete payment.

United States of America shall pay the sum of money.

2. Purport of appeal

In the judgment of the court of first instance, the part against the plaintiff ordering payment shall be revoked. The defendants shall jointly and severally.

50,000,000 won for the plaintiff and the plaintiff from the day following the delivery of the complaint of this case to the day of complete payment.

It shall pay 20% interest per annum.

1. Quotation of judgment of the first instance;

The reasoning for this Court’s explanation is as stated in the reasoning of the judgment of the court of first instance, except for the addition of the following judgments at the end of paragraph (3) of the reasoning of the judgment of the court of first instance. Thus, this is cited by the main text of Article 420 of the Civil Procedure Act.

2. The addition;

On the other hand, the Plaintiff asserts that D’s lessee D leased the instant furniture No. 12 (hereinafter “the instant store”) from Defendant B, and then installed the facilities and equipment by disbursing KRW 98,208,00. Upon the termination of the said lease, the Defendant’s above Defendant E transferred the facilities and equipment inside the instant store to F after receiving delivery of the instant store on May 30, 2013, and the said Defendant also asserts that he should compensate for damages equivalent to at least KRW 50 million out of the said facility cost.

However, the change of the cause of the claim is permitted only to the extent that the basis of the claim is not changed (see the main text of Article 232(1) of the Civil Procedure Act), and since the addition of the cause of the claim is also a form of change, the claim added and the basis of the previous claim should be the same. In the instant case, the Plaintiff claimed damages equivalent to the total sum of the claims against the Defendants by asserting that the payment of guarantee money and the equipment was made upon the conclusion of the instant lease agreement by falling under the Defendant’s exaggerated advertisement. On May 14, 2013, Defendant B occupied the Plaintiff’s facilities and equipment by the statement in the preparatory document, which stated that the act of transferring the ownership of the Plaintiff’s facilities and equipment to a third party constitutes the crime of embezzlement of stolen property, and it is apparent in the record that the Plaintiff added the cause of claim for damages equivalent to the cost of construction. However, the Plaintiff’s claim for damages due to deception from the Defendants at the time of entering into the lease agreement on the store of this case, and thus, it cannot be deemed unlawful as it does not meet all other requirements of the claim.

Furthermore, even if the above additional change of the cause of claim is permitted, if the court's judgment was made as to whether the claim alleged a offset is constituted, such judgment has res judicata effect (see Article 216 of the Civil Procedure Act), and thus, neither party may make any assertion contrary thereto nor the court may make any decision contrary thereto. However, according to the evidence No. 4, in the case where the name of the building against Defendant B D is claimed, the party who designated the above Defendant's overdue rent and the claim for return of unjust enrichment against the designated party D, as well as the name of the building that was raised against the designated party D, "D suffered considerable damages due to the above Defendant's use of the above facilities after delivery of the building in question, and thus, the above overdue rent and unjust enrichment should be deducted from the above charges." Accordingly, it is recognized that the appeal to the Supreme Court became final and conclusive on August 30, 2013 by the aforementioned judgment against the Plaintiff, as a result, cannot be accepted as a set-off against the designated party.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit, and the judgment of the court of first instance is just, and the plaintiff's appeal is dismissed as it is without merit, and it is so decided as per Disposition.

Justices Kim Yong-seok

Judges Dok-type

Judges Hah-sik

A person shall be appointed.