[손해배상][집18(3)민,359]
(a) the case where there is an error of not examining the sole method of evidence;
B. A set-off of negligence in a case where damage is increased as a result of the failure to take measures such as suspension of execution, notwithstanding the fact that a favorable judgment and a declaration of provisional execution had been made to the effect that a person subject to a provisional disposition of prohibition of use filed a lawsuit of objection by a third party and the court of first instance rejected the execution
A. Although a lawyer applied for a witness in order to prove the fact of the attorney's retainer fee and the payment of honorarium, there is no evidence to reject the application for examination of evidence, and there is no evidence to reject the above claim, there is an error of not examining the only method of evidence.
B. If the damage was increased due to the failure of a favorable judgment of the first instance court to deny the execution of the provisional disposition and the failure to cancel the provisional execution despite the declaration of the provisional execution in the first instance court, the creditor is also at fault, so the negligence should be offset.
Article 263 of the Civil Procedure Act; Article 763 of the Civil Act; Article 396 of the Civil Act
Plaintiff
Defendant
Daegu High Court Decision 69Na404 delivered on August 18, 1970
Of the original judgment, the part against the plaintiff against 1.50,000 won in remuneration shall be reversed, and the case concerning this part shall be remanded to the Daegu High Court.
All remaining appeals by the plaintiff and the defendant are dismissed.
Of the costs of appeal as to this part, the costs of appeal by the plaintiff are assessed against the plaintiff, while the costs of appeal by the defendant are assessed against the defendant.
First, the Plaintiff’s agent’s ground of appeal No. 1
According to the judgment of the court below, the court below ruled that the plaintiff paid the plaintiff to Kim Jong-su, an agent of the third party in the second instance of the defendant's lawsuit, and the plaintiff's claim for compensation of 1.50,000 won was rejected. According to the evidence No. 2 (judgment), even if it can be acknowledged that the plaintiff delegated the above third party's act of litigation to the above third party to the above attorney-at-law, the plaintiff's claim is groundless. However, according to the records (Chapter No. 219), although the plaintiff's agent applied for the non-party No. 1 in order to prove the payment of the retainer and honorarium at the court below, the court below rejected the above motion as evidence, and it did not err by failing to examine the only method of evidence. The argument is reasonable.
2. health care unit;
In consideration of records, unless there is any assertion on the special circumstances that the defendant predicted that the plaintiff will suffer mental suffering other than the property damage due to the execution of the provisional disposition in this case, the plaintiff's mental damage is compensated at the same time due to the compensation for the property damage in this case, there are circumstances such as the theory of lawsuit, or there is no error of law in the exercise of the right of explanation or incomplete deliberation.
3 points of the Dong 3
The court below accepted the fact that even if there is a defect in the judgment, the plaintiff could take measures such as suspending the execution, and make an annual coal manufacturing, even though it was possible for the plaintiff to do so, the above fact-finding can be accepted in light of the evidence relation, and since the fact-finding can be said to have increased the plaintiff's damage due to the plaintiff's negligence, it can be said that the above fact-finding can be justified in light of the evidence relation, so it can be said that the plaintiff's damage caused by the execution has been increased due to the plaintiff's negligence, so it is just in the court below's decision of comparative negligence, and there is no error in the misapprehension of law in the judgment of the court below.
Next, the Defendant’s grounds of appeal are health;
In light of the record, even after reviewing the record, whether the original judgment has a tension with the rules of evidence or the testimony of the non-party 3 of the witness cannot be found as a perjury, so it cannot be adopted to criticize the legitimate fact-finding of the original judgment.
Therefore, the part against the plaintiff as to attorney fees in the original judgment shall be reversed and remanded, and the remaining members and the defendant's respective appeals shall be dismissed. The costs of appeal as to this part shall be assessed against the losing party and it is so decided as per Disposition by the assent of all participating judges.
Supreme Court Judges Kim Young-chul (Presiding Judge) (Presiding Justice) Mag-gim Kim, Kim Jong-dae and Yang-Namng