[1] In a case where a counterclaim is filed against the principal lawsuit seeking confirmation of non-existence of a damage liability, whether the benefit of confirmation as to the principal lawsuit is extinguished (negative)

[2] Where a victim who received insurance benefits under the Industrial Accident Compensation Insurance Act or the National Health Insurance Act voluntarily deducted the insurance benefits and claims damages against a third party, the amount of damages subject to comparative negligence (=the amount of damages including the insurance benefits)

[1] Since the principal lawsuit legally instituted upon meeting the requirements for the lawsuit does not become unlawful again due to a defect in the requirements for the lawsuit due to a counterclaim instituted by the other party, if the plaintiff sought confirmation of the absence of damages liability against the defendant as a principal lawsuit, even if the defendant subsequently filed a counterclaim seeking confirmation of the non-existence of damages liability, such circumstance alone does not lead to an unlawful conclusion that the principal lawsuit is extinguished due to the extinguishment of interest in confirmation of the principal claim. Article 271 of the Civil Procedure Act provides that when the principal lawsuit has been withdrawn, the defendant may withdraw the counterclaim without the plaintiff's consent. Accordingly, when the principal lawsuit is withdrawn on the grounds that the plaintiff's counterclaim was instituted, the defendant can unilaterally withdraw the counterclaim and thus, the situation in which the plaintiff could not obtain the res judicata effect initially sought by the plaintiff can not be seen as terminating the interest in confirmation of the principal lawsuit solely on the basis that the counterclaim was filed as set forth in the above legal principles.

[2] Where a victim who received insurance benefits under the Industrial Accident Compensation Insurance Act or the National Health Insurance Act claims for damages against a third party, if the victim's negligence competes with the third party, the amount of damages calculated first shall be offset by negligence, and the insurance benefits shall be deducted from the amount of damages calculated first, and even where the victim voluntarily deducted the insurance benefits and claimed for damages, the amount of damages which are the object of offsetting

[1] Article 250 of the Civil Procedure Act / [2] Article 87 of the Industrial Accident Compensation Insurance Act, Article 53 of the National Health Insurance Act, Articles 396 and 763 of the Civil Act

[1] Supreme Court Decision 99Da17401, 17418 decided Jun. 8, 1999 (Gong1999Ha, 1341) / [2] Supreme Court Decision 95Da24340 decided Jan. 23, 1996 (Gong1996Sang, 659) Supreme Court Decision 2002Da50149 decided Dec. 26, 2002 (Gong2003Sang, 481)

State Fire & Marine Insurance Co., Ltd. (Attorney Im-soo et al., Counsel for defendant-appellant)

Defendant

Gwangju High Court Decision 2009Na3509, 3516 decided December 2, 2009

The part of the judgment of the court below against the Defendant (Counterclaim Plaintiff) regarding active damages among the part on the principal claim and the part on the counterclaim claim is reversed, and this part of the case is remanded to the Gwangju High Court. The remaining appeals are all dismissed.

We examine the grounds of appeal.

1. The plaintiff's ground of appeal No. 1

Inasmuch as the principal lawsuit legally instituted upon satisfying the requirements of the lawsuit is not deemed to be defective due to a counterclaim instituted by the other party, and thus, if the Plaintiff sought confirmation of the absence of the damages liability against the Defendant as a result of the benefit of seeking confirmation of the absence of the damages liability, even if the Defendant subsequently filed a counterclaim seeking the performance of the damages liability, such circumstance alone cannot be deemed to constitute an unlawful principal lawsuit due to the extinguishment of the benefit of confirmation as to the claim (see Supreme Court Decision 99Da17401, 17418 delivered on June 8, 199).

According to the reasoning of the judgment of the court below, where the legal action for the confirmation of the existence of a debt became realistic in the form of filing a suit for performance by a creditor's counterclaim, the court below determined that the lawsuit for the confirmation of the existence of a debt which is the principal lawsuit is for the purpose of its original function; and that the res judicata of the judgment dismissing the counterclaim in the case where the defendant filed a suit for the performance as a counterclaim is for the same purpose as that of the plaintiff in the principal lawsuit for the confirmation of the existence of a debt, in principle, should be modified; in such a case, it is necessary to improve the above precedents in the direction of recommending the withdrawal of the plaintiff's principal lawsuit seeking the confirmation of the existence of a debt in the case where the operation of the lawsuit is for the same purpose, and therefore, as long as the plaintiff (the counterclaim, the plaintiff hereinafter referred to as the "Plaintiff") filed a suit for the confirmation of the existence of a debt in the case, the plaintiff's principal lawsuit is unlawful as there is no benefit of confirmation.

However, Article 271 of the Civil Procedure Act provides that when the principal lawsuit has been withdrawn, the defendant may withdraw the counterclaim without the plaintiff's consent. Accordingly, when the plaintiff withdraws the principal lawsuit on the ground that the counterclaim was filed, the defendant unilaterally withdraws the counterclaim and thus the situation in which the plaintiff could not obtain res judicata that the plaintiff sought may arise. Thus, the benefit of confirmation on the principal lawsuit cannot be deemed extinguished solely on the ground that the counterclaim was filed as such as the above legal principles, and there is no need to modify the precedents. Ultimately, the court below erred in the misapprehension of legal principles as to the benefit of the lawsuit seeking confirmation of the existence of the obligation, which affected the conclusion of the judgment. Accordingly, the appeal pointing this out has merit.

2. The plaintiff's ground of appeal No. 2 and the defendant's ground of appeal No. 1

Examining the reasoning of the judgment below in light of the records, the court below determined that the non-party 1 driving of the wheel Cargo on July 6, 2007, which is owned by the non-party 2 (vehicle 1 omitted) around 21:45, the non-party 1 went back to the access road to the restaurant in Yongnam Young-gu, Young-gu, and that the driver of the net Industrial Complex, who entered the two lanes of the two lanes of the two lanes of the two lanes of the two lanes of the two lanes of the two lanes of the two lanes of the two lanes of the two lanes of the two lanes of the two streets of the five lanes of the two lanes of the road, without carefully examining whether there is a vehicle running (vehicle 2 registration number omitted) by the defendant's failure to discover the two lanes of the two lanes of the two lanes of the two lanes of the road and the damages caused to the non-party 1's fault in calculating the damages caused by the non-party 2's fault in light of the circumstances that caused the damages caused by the non-party 1's fault.

3. As to the defendant's grounds of appeal Nos. 2 and 3

This part of the grounds of appeal is merely an error in the selection of evidence and fact-finding which belong to the full power of the fact-finding court, and cannot be viewed as a legitimate ground

4. As to the Defendant’s fourth ground of appeal

Where a victim who received insurance benefits under the Industrial Accident Compensation Insurance Act or the National Health Insurance Act claims for damages against a third party, if the victim's negligence competes with that of the third party, the amount of damages calculated first shall be offset by negligence, and the insurance benefits shall be deducted from the amount of damages calculated, and even in cases where the victim deducts his/her insurance benefits and claims for damages, the amount of damages subject to offsetting by negligence shall include insurance benefits (see, e.g., Supreme Court Decisions 95Da24340, Jan. 23, 1996; 2002Da50149, Dec. 26, 2002).

Therefore, in calculating the amount of damages for the active damages of this case, the court below did not include the insurance benefits received by the defendant under the National Health Insurance Act in the active damages by itself, but did not offset the damages by negligence, and did not deduct the insurance benefits again, and such illegality affected the judgment. Therefore, the ground for appeal pointing this out has merit.

5. As to the Defendant’s fifth ground of appeal

Examining the reasoning of the judgment below in light of the records, although the defendant filed the initial counterclaim and claimed damages for delay of the damages of this case from July 6, 2006, "the damages for delay of the damages of this case from the date on which the claim for the counterclaim is extended later, and the damages for delay from the date on which the copy of the claim for counterclaim (which seems to be a clerical error in the application for extension and change of cause) is delivered," the part of the claim for counterclaim and the damages for delay from July 6, 2006 to the date on which the copy of the application for change of cause was delivered shall be deemed to have been lawfully withdrawn. After that, from the purport of appeal as to the part against which the defendant lost, the defendant sought "from July 6, 2005" to "from July 6, 2005," and thus,

6. Conclusion

Therefore, without examining the remaining grounds of appeal by the defendant, the part against the defendant as to the claim of main lawsuit and the part against the defendant as to the counterclaim is reversed, and this part of the case is remanded to the court below for a new trial and determination, and all remaining appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jeon Soo-ahn (Presiding Justice)