[구상금][공1996.1.1.(1),1]
[1] Where the judgment of the first instance against the joint tortfeasor is finalized only one person, and the remainder is increased in the amount of award by the appellate court as a result of appeal, the scope of the right to indemnity against the appellant who has not appealed up to the increased portion
[2] The period during which an appeal may be filed
[1] If it is deemed that the grounds for recognizing the right to indemnity among the joint tortfeasors are to share fair liability according to the ratio of negligence, the judgment of the court of first instance against one of the vicarious debtors jointly and severally liable persons jointly and severally liable who jointly and severally liable, becomes final and conclusive, and the remaining debtors are dissatisfied with the judgment of the court of first instance, and as a result, the court of first instance has changed the scope of obligations between the vicarious debtors because the cited amount of the judgment of the court of first instance has increased compared to that of the judgment of the court of first instance by incidental appeal of the victim in the appellate instance, this is the case where the scope of obligations between the debtors vary due to excessive act of filing an appeal by the debtor who is dissatisfied with the judgment of the court of first instance. It is obvious that it would be against the concept of fairness to have the obligor share damages on a debtor who has not appealed against the part of the judgment of first instance, and even if the debtor who has appealed in the judgment of first instance has withdrawn the increased portion in the appellate court, it cannot be effective as
[2] It is reasonable to view that the time when an appeal can be filed is the time when the period for submitting the appellate brief corresponding to the time of closing argument in the appellate court.
[1] Articles 425 and 760 of the Civil Act / [2] Articles 372, 395, and 397 of the Civil Procedure Act
[1] Supreme Court Decision 78Da1423 decided Nov. 14, 1978 (Gong1979, 11608) / [2] Supreme Court Decision 93Da4250 decided Aug. 27, 1993 (Gong1993Ha, 2616), Supreme Court Decision 93Da44524 decided Dec. 14, 1993 (Gong1994Sang, 366), Supreme Court Decision 94Da13695 decided Dec. 22, 1994 (Gong195Sang, 623)
[Judgment of the court below]
Defendant 1 and one other (Defendant-Appellee, Counsel for the defendant-appellant)
Seoul High Court Decision 93Na41527 delivered on May 24, 1994
The plaintiff's appeal is dismissed. All appeals by the defendants are dismissed. The costs of appeal are assessed against the plaintiff and the costs of appeal are assessed against the defendants.
1. We examine the Plaintiff’s grounds of appeal.
The First Ground for Appeal
Where one of the vicarious debtors jointly and severally liable withdraws and the other debtors jointly discharge, the withdrawing obligor is entitled to exercise the right to indemnity only for the portion exceeding his share of the joint discharge amount (see, e.g., Supreme Court Decisions 88Meu27232, Sept. 26, 1989; 94Da4974, Dec. 27, 1994). The judgment of the court below to the same purport is just and there are no errors in the misapprehension of legal principles as to the scope of the right to indemnity as discussed. There is no reason to argue.
As to the grounds of appeal Nos. 2 and 3
If it is deemed that the grounds for recognizing the right to indemnity among the joint tortfeasor are to fairly share the liability according to the ratio of negligence, it is reasonable to view that the judgment of the court of first instance against the quasi-joint and several obligors, who are joint and several obligors, is finalized only one of the quasi-joint and several obligors, and the remaining debtors are dissatisfied with the judgment of the court of first instance, and the scope of obligations between the quasi-joint and several obligors differs due to the increase in the amount of award in the judgment of the court of first instance by incidental appeal of the victim in the appellate court, it is reasonable to view that the excessive act of filing an appeal against the judgment of the court of first instance, which is the case where the scope of obligations between the quasi-joint and several obligors differs. In such a case, it is evident that it would be against the concept of fairness to have a debtor who did not appeal against the portion that was more increased than the cited amount in the judgment of first instance, even if the debtor who appealed in the judgment of first instance had withdrawn the increased portion in the appellate court, the effect of joint immunity for the other debtors
In light of the above legal principles, it is just that the court below decided that the plaintiff's withdrawal amount within the scope of the cited amount of the judgment of the court of first instance against the defendant 2, who was not a party to the lawsuit filed by the non-party, etc., should be jointly exempted, and that the plaintiff's withdrawal amount within the scope of the cited amount of the judgment of the court of first instance against the defendant 1 who was not a party to the lawsuit filed by the non-party, etc., should be jointly exempted.
2. We examine the defendants' incidental appeal.
It is reasonable to see that the deadline for submitting an incidental appeal is the expiration of the deadline for submitting the appellate brief corresponding to the time of closing of argument in the appellate court (see, e.g., Supreme Court Decisions 68Da825, Sept. 17, 1968; 94Da13695, Dec. 22, 1994). According to the records, it is evident that the Defendants filed an incidental appeal 20 days after the date on which the notice of receipt of the appellate brief was served on the Plaintiff. Thus, the incidental appeal by the Defendants cannot be dismissed as it is unlawful.
3. Therefore, the plaintiff's appeal is dismissed, and all appeals by the defendants are dismissed. The costs of appeal are assessed against the plaintiff and the costs of appeal are assessed against the defendants. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Jeong Jong-ho (Presiding Justice)