[채무부존재확인·손해배상(기)][공1999.7.15.(86),1341]
[1] In a case where a counterclaim is filed against the principal lawsuit seeking the confirmation of non-existence of a damage liability, whether the benefit of the lawsuit against the principal lawsuit ceases to exist (negative)
[2] In a case where the appellate court rendered a judgment of retirement of a case to be dismissed, but only the plaintiff appealed against the appeal, the measures to be taken by the court of final appeal (=the dismissal of final appeal)
[1] Since the principal lawsuit legally instituted upon meeting the requirements for the lawsuit is not unlawful again due to a defect in the requirements for the lawsuit due to a counterclaim brought by the other party thereafter, if the plaintiff sought confirmation of the absence of the damages liability against the defendant as a principal lawsuit, even if the defendant filed a counterclaim seeking the performance of the damages liability thereafter, such circumstance alone does not lead to the extinguishment of the benefits of confirmation as to the principal lawsuit, and thus, the principal lawsuit cannot be deemed unlawful.
[2] In a case where the appellate court rendered a judgment of retirement of a case which shall be dismissed, but only the plaintiff appealed, the appellate court's judgment that dismissed the lawsuit cannot render a judgment of dismissal disadvantageous to the plaintiff. Thus, the appellate court's judgment cannot be maintained as it is.
[1] Article 228 of the Civil Procedure Act / [2] Articles 385, 395, and 401 of the Civil Procedure Act
[2] Supreme Court Decision 96Da3852 delivered on October 11, 1996 (Gong1996Ha, 3310), Supreme Court Decision 96Nu6417 delivered on December 6, 1996 (Gong1997Sang, 224), Supreme Court Decision 98Da46945 delivered on April 9, 199 (Gong199Sang, 840)
Samsung Fire & Marine Insurance Co., Ltd. (Attorney Park Jong-soo, Counsel for the plaintiff-appellant)
Defendant (Counterclaim Plaintiff) 1 and two others (Attorney Yellow-soo, Counsel for the defendant-appellant) who are the party to the lawsuit of the deceased Nonparty 1
Seoul High Court Decision 98Na37301, 37318 delivered on February 24, 199
The appeal is dismissed. The costs of appeal are assessed against the plaintiff (Counterclaim defendant).
1. As to the counterclaim of this case, the court below acknowledged the fact that the non-party 1, who is the inheritee of the defendant (the non-party 1, the plaintiff 2, the plaintiff 2, the plaintiff 2, who used the automobile insurance of the plaintiff (the counter-party 1, the plaintiff 2, the plaintiff 2), was involved in the traffic accident resulting in the death of the non-party 2, who purchased the automobile insurance of the plaintiff (the non-party 2, the non-party 2, the plaintiff 2). The plaintiff cannot be deemed to have fulfilled the necessary duty of care, and therefore the plaintiff is liable to compensate the defendants for damages in relation to the above accident, but the non-party 1 is also liable to offset the amount of 70% of the negligence. The decision of the court below is acceptable, and there is no violation of the rules of evidence, the incomplete deliberation,
2. As to the Plaintiff’s principal lawsuit seeking confirmation of non-existence of the liability for damages arising from the foregoing traffic accident, the existence of interest in the lawsuit ought to be determined at the time of the closing of argument at the fact-finding court. As long as the Defendants filed a counterclaim against the Plaintiff and sought the performance of the above liability for damages, the purpose of the lawsuit can be sufficiently achieved by the defense seeking rejection of the counterclaim, and thus, the principal lawsuit dismissed it on the ground that there is no interest in the lawsuit
However, since the principal lawsuit legally filed upon meeting the requirements of the lawsuit does not go to be unlawful again due to the defect in the requirements of the lawsuit due to the counterclaim brought by the other party. Thus, if the Plaintiff sought confirmation of the absence of the damages liability in relation to the above traffic accident, and the Plaintiff sought such confirmation as the principal lawsuit, even if the Defendant subsequently filed a counterclaim seeking the performance of the damages liability, such circumstance alone does not lead to the extinguishment of the interest in confirmation of the principal lawsuit, thereby making the principal lawsuit unlawful.
Unlike the above, the court below rejected the principal lawsuit of this case by deeming it illegal and thus dismissed it to be a misunderstanding of the legal principles as to the interest in the lawsuit. However, as seen above, inasmuch as the Plaintiff liable for damages with respect to the traffic accident above, the Plaintiff’s claim for confirmation of non-existence of the principal lawsuit is without merit, and only the Plaintiff appealed the judgment of the court below which dismissed the lawsuit in this case, and cannot render a judgment of dismissing the claim more unfavorable to the Plaintiff. Thus, the judgment of the court below
3. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition.
Justices Shin Sung-sung (Presiding Justice)