2019Da292033 (Counterclaim) Damage

2019Da292040 (Counterclaim) Damage

Law Firm LLC et al., Counsel for defendant-appellant

[Defendant-Appellee] Plaintiff 1 and 3 others

Attorney Seo-sung et al., Counsel for the defendant-appellant

(Counterclaim), 2068248 (Counterclaim Judgment)

Defendant (Plaintiff Counterclaim) 1's appeal is dismissed.

Of the costs of appeal, the costs of appeal by Plaintiff (Counterclaim Defendant) are borne by Plaintiff (Counterclaim Defendant) and Defendant (Counterclaim Plaintiff) by Defendant (Counterclaim Plaintiff).

1. Determination on the grounds of appeal by the Plaintiff (Counterclaim Defendant)

A. Basic factual relationship

According to the reasoning of the judgment of the first instance court cited by the lower court and the record, the following facts are revealed. (1) Plaintiff (Counterclaim Defendant 2; hereinafter “Plaintiff”) operates the Doletz Seoul (hereinafter “Seoul Simam Park”) located in the Gumsan-dong. The area around the Gmar Park in this case has a flower area where the Defendant (Counterclaim Plaintiff; hereinafter “Defendant”) 2, Defendant 3, Defendant 4, and Defendant 5 grow far from the North side of the Gmar Park in this case to the North side of the Gmar Park in this case. The Domar farmer operated by Defendant 1 is located far far from the 550 meters away from the North side of the Gmar Park in this case. The Domnam Park operated by Defendant 1 was located far from the North side of the Gmar Park in this case.

(2) On December 2015, the Defendant filed an application against the Plaintiff for the adjudication of environmental disputes with the Central Environmental Dispute Resolution Committee (hereinafter referred to as the “Central Environmental Resolution Committee”). The reasons are that the Plaintiff contaminated groundwater with ppuri salt in order to prevent iceing in the Gyeong Park, and died of pots and flowerss using contaminated groundwater. The Plaintiff did not comply with the case of the application for environmental dispute arbitration, and filed a lawsuit seeking compensation for damages. The Defendants filed the instant counterclaim.

B. Whether liability for damages has been established (Ground of appeal No. 1) (1) Article 44(1) of the Framework Act on Environmental Policy provides that “In the event that any environmental pollution or environmental damage has occurred, the person causing the environmental pollution or environmental damage shall compensate for such damage.” This is a special provision for the provisions on tort under the Civil Act (see, e.g., Supreme Court Decision 2006Da50338, Sept. 11, 2008). Accordingly, when an environmental pollution or environmental damage has occurred, the person causing the environmental pollution or environmental damage shall compensate for such damage, even though there is no cause attributable to Article 44(1) of the Framework Act on Environmental Policy (see, e.g., Supreme Court Decisions 2015Da2321, Feb. 15, 2017; 2035Da5038, Sept. 26, 2018).

In general, the Plaintiff’s harmful act, the victim’s growth, and the causal relationship between the victim’s act of 10 and 2 shall be borne by the victim. However, in a lawsuit claiming damages on the high seas by air pollution or water pollution, it may result in de facto refusal of judicial remedies against the victim. On the other hand, the lower court found the Defendant’s liability for damages on the ground that it is much more easy for the perpetrator to investigate the cause of the damage than the victim, and the perpetrator would have concealed any harmful material from 0,000,000,000,000,000,0000,0000,0000,000,000,0000,000,000,0000,000,000,000,000,000,000,000,000,000,000,000,00,000,00.

On November 27, 2015, the appellate court rendered a decision in lieu of conciliation to the effect that the Plaintiff is liable for damages. The said decision became final and conclusive around that time (Seoul High Court Decision 2015Na2075801, 2075818). (D) Shin, Inc., Ltd., the Plaintiff and the Plaintiff on March 30, 2016, concluded a service contract on the “Survey on Impact of the Seoul Underground Water,” and prepared a report on November 30, 2016. Examining the reasoning of the judgment below in light of the evidence duly admitted by the lower court, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, contrary to what is alleged in the grounds of appeal.

C. The extent of and limitation on liability for damages (ground of appeal Nos. 2, 3) (1) an appraiser’s appraisal result shall respect, unless there is any erroneous error, such as contrary to this empirical rule, such as appraisal method, or making it unreasonable (see Supreme Court Decision 2012Da18762, Oct. 15, 2014).

2) Examining the reasoning of the lower court’s judgment in light of the principle of equity, the lower court determined the amount of damages to be paid to the perpetrator, inasmuch as it is contrary to the ideology of fairness, and applied mutatis mutandis the doctrine of comparative negligence, thereby taking into account the factors of the victim’s contribution to the occurrence or expansion of damages. Inasmuch as it is deemed considerably unreasonable in light of the principle of equity, determination of the fact-finding on the grounds for mitigation of liability in the claim for damages arising from illegal acts belongs to the exclusive authority of the fact-finding court (see Supreme Court Decision 2016Da35802, supra). (2) The lower court recognized the scope of damages by the appraiser of the first instance trial and limited the Plaintiff’s liability for damages on the ground that the lower court did not have any significant impact on the revenues of the Plaintiff, including the Plaintiff’s 1st instance court’s appraisal at the point where the Plaintiff 2, the Defendant 3, and the Defendant 5’s 4th instance court did not have any reasonable method of calculating the amount of damages as follows.

2. Determination on Defendant 1’s appeal

We examine ex officio the legitimacy of defendant 1's standing appeal.

The scope of the power of representation in a lawsuit is, in principle, limited to the relevant instance. However, in cases where an attorney was separately authorized to file an appeal, barring special circumstances, barring any authority and duty to submit an appeal petition. Therefore, in cases of defects on which stamps are not attached to an appeal petition, the attorney may correct such defects, and the presiding judge of the lower court may also order the attorney to correct the stamps (see Supreme Court Order 2013Ma670, Jul. 31, 2013).

According to the record, Defendant 1’s attorney was served on October 5, 2019 by the lower court, and filed an appeal against the lower court on October 17, 2019. The lower court, which received the special authorization of filing an appeal, issued an order to dismiss Defendant 1’s appeal on the ground that: (a) Defendant 1’s attorney, who received the special authorization of filing an appeal, did not revise the stamps within the amendment period; (b) the lower court ordered Defendant 1 to dismiss the written appeal on November 5, 2019 on the ground that he did not correct the stamps within the amendment period. The foregoing order was served on Defendant 1’s attorney on November 6, 2019. Defendant 1 submitted the instant written appeal on December 19, 2019.

Examining these facts in light of the legal principles as seen above, since Defendant 1 delegated Defendant 1’s attorney to the lower court’s lawsuit and delegated Defendant 1’s attorney to receive the special acceptance of the appeal, Defendant 1’s attorney to issue an order to recognize the appeal and to dismiss the petition of appeal on the ground of non-compliance with the order to correct the stamp, is lawful. Accordingly, Defendant 1’s appeal is unlawful as it was filed subsequent to the lapse of the peremptory period, which is the final appeal period.

3. Conclusion

The appeal by the plaintiff is dismissed in entirety as it is without merit. The appeal by the defendant 1 is dismissed as it is unlawful and dismissed. The part of the appeal by the plaintiff (Counterclaim defendant) among the costs of the appeal is assessed against the plaintiff (Counterclaim defendant) and the defendant (Counterclaim plaintiff) 1, respectively. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Jae-hyung

Justices Min You-sook

Justices Noh Tae-ok