[1] Whether a person who intentionally committed a tort by using the victim's care can assert the offsetting of negligence on the ground of the victim's care (negative)

[2] The deadline for filing an appeal and its reasons (=the deadline for filing an appeal)

[1] If the victim's negligence is acknowledged in a claim for damages, the court shall take such factors into account in determining the liability for damages and the amount thereof, and even if the person liable for damages does not assert the victim's negligence, the court shall ex officio examine and determine it in the case where the victim's negligence is recognized by the litigation materials. However, if a person who intentionally committed a tort by using the victim's care and care makes a claim for the reduction of his/her liability

[2] Appellee may make an incidental appeal even after the right to appeal is extinguished, but the appeal shall be filed within the period for submitting the appellate brief and a statement of the reasons therefor shall be submitted.

[1] Articles 396 and 763 of the Civil Act / [2] Articles 372, 395, and 397 of the Civil Procedure Act

[1] Supreme Court Decision 75Da11 delivered on May 11, 197 (Gong1976, 9181) (Gong1976, 9181) Supreme Court Decision 87Da637 delivered on July 21, 1987 (Gong1987, 138), Supreme Court Decision 95Da30352 delivered on November 14, 1995 (Gong196Sang, 21), Supreme Court Decision 96Da3013 delivered on October 25, 1996 (Gong196Ha, 3434) / [2] Supreme Court Decision 95Da46265 delivered on October 10, 197 (Gong197Ha, 3380), Supreme Court Decision 95Da97989 delivered on November 28, 197 (Gong199, 97Da9794979 delivered on September 39, 197).

Gambling People

Defendant (Attorney Cho Young-ho, Counsel for defendant-appellant)

Seoul High Court Decision 98Na66262 delivered on July 22, 1999

The part of the lower judgment against the Plaintiff is reversed, and that part of the case is remanded to the Seoul High Court. The Defendant’s supplementary appeal is dismissed.

We examine the grounds of appeal.

1. As to the Plaintiff’s appeal

According to the reasoning of the judgment below, in mediating the contract for the exchange of the forest of this case owned by the plaintiff by the plaintiff's singing room and the non-party mobilization, although the forest of this case is located far away from the seaside and the sea is not visible at all, the defendant solicits the plaintiff to conclude the exchange contract of this case on the ground that it is located at the seaside where the so-called "Korea Land Markets" where the forest of this case is located at the sea of this case, and it is reasonable to conclude the exchange contract of this case on the ground that there is a reasonable investment value. Further, the plaintiff would suggest that the plaintiff should respond to the site and present the site at the site, and the adjacent mountain of this case where the surface of the sea which is completely separated from the actual location of the forest of this case is seen as the forest of this case, and the plaintiff's actual value of the forest of this case should be determined as the market price of this case at least 600 won per square year, and the defendant should be held liable for damages to the plaintiff's actual value of the forest of this case at least 300% per square year.

If the victim's negligence is acknowledged in a claim for damages, the court shall consider the liability for damages and the amount thereof in determining the victim's negligence, and even if the person liable for damages did not assert the victim's negligence, the court shall ex officio examine and determine it in the case where the victim's negligence is recognized by the litigation materials (see, e.g., Supreme Court Decision 96Da3013, Oct. 25, 1996). However, it is not permitted to assert that the person who intentionally committed the tort by taking advantage of the victim's care and by taking advantage of the victim's negligence would decrease the victim's liability on the ground of the victim's negligence (see, e.g., Supreme Court Decisions 75Da11, May 11, 197; 87Meu637, Jul. 21, 1987; 95Da30352, Nov. 14, 1995).

Therefore, even in this case where damages are claimed on the ground of Defendant’s tort, it is not allowed to offset the negligence by the Plaintiff, the victim’s negligence. However, the court below erred by misapprehending the legal principles on offsetting the negligence, which affected the conclusion of the judgment. Therefore, the Plaintiff’s ground of appeal, including this purport, has merit, and the part against the Plaintiff among the judgment below against the Plaintiff cannot be reversed.

2. As to the defendant's incidental appeal

Appellee may make an incidental appeal even after the right to appeal has been extinguished, but it is obvious that the incidental appellate brief did not state the grounds for incidental appeal in the incidental appellate brief, and it was filed on October 8 of the same year after the lapse of 20 days from the date of delivery of the notice of receipt of the litigation record (see, e.g., Supreme Court Decisions 97Da38299, Nov. 28, 1997; 98Da47542, 4759, Jul. 9, 199). According to the records, although the defendant submitted a supplementary appellate brief on September 7, 1999 on which the notice of receipt of the litigation record was served to the appellant, it is evident that the incidental appellate brief was submitted only after the lapse of 20 days from the date of delivery of the notice of receipt of the litigation record.

Therefore, the defendant's incidental appeal of this case was submitted after the due deadline for submission, and thus it should be dismissed in accordance with Article 399 of the Civil Procedure Act.

3. Therefore, the part of the lower judgment against the Plaintiff is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. The Defendant’s supplementary appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Im-soo (Presiding Justice)