2017Da206281 Compensation for Damages

A

person

Korea

Busan High Court Decision 2016Na55103 Decided December 22, 2016

June 15, 2017:

The part of the judgment below against the defendant is reversed, and that part of the case is remanded to Busan High Court. The plaintiff's appeal is dismissed.

The grounds of appeal are examined.

1. As to the Defendant’s first ground of appeal

A. Based on its reasoning, the lower court determined as follows: (a) the public official in charge of the instant payment order (hereinafter “instant payment order”) filed by the Plaintiff against B and C was found to have committed an unlawful act that delivered the original copy of the instant payment order to the Plaintiff, which lost its validity due to the Plaintiff’s objection; and (b) the Plaintiff believed that the original copy of the instant payment order is valid due to the Plaintiff’s request for the attachment and collection order of the claim No. 2015 other bond No. 19164 against B, while requesting for the attachment and collection order of the claim No. 2015 other bond No. 19164, the Plaintiff paid KRW 89,200 (i.e., stamp KRW 4,000 + delivery charge + KRW 85,200), and thus, determined that the damage equivalent to the instant payment order cost paid by the Plaintiff is a damage with proximate causal

B. However, it is difficult to accept the above determination by the court below for the following reasons.

(1) The reasoning of the lower judgment and the evidence duly admitted by the lower court revealed the following: (a) B was served on April 6, 2006 on the instant payment order and raised an objection on April 17, 2006; (b) the instant payment order was executed as a principal litigation of the case No. 2006, Busan District Court 2006, Jun. 19, 2006; (c) the Plaintiff withdrawn the lawsuit against B and C on June 19, 2006; and (d) around September 13, 2015, the original copy of the instant payment order was the executive title and filed a request for the instant seizure and collection order against B.

(2) As such, following the Plaintiff’s lawful objection, the instant payment order lost its validity and was executed as a lawsuit on the merits (Articles 470(1) and 472(2) of the Civil Procedure Act), and thereafter, if the Plaintiff voluntarily withdrawn a lawsuit against B in the lawsuit on the merits, even though the Plaintiff believed that the original copy of the instant payment order is valid and filed an application for the seizure and collection order against B, the damage equivalent to the costs incurred by the Plaintiff’s request for the seizure and collection order cannot be deemed as the damage having a proximate causal relation with the unlawful act committed by the public official in charge of the instant payment order.

(3) Nevertheless, based on its stated reasoning, the lower court determined that proximate causal link exists between the official misconduct of the public official in charge of the instant payment order and the damage equivalent to the Plaintiff’s expense for requesting the collection order and the seizure and collection order. In so doing, the lower court erred by misapprehending the legal doctrine on substantial causal relationship in damages, thereby adversely affecting the conclusion of the judgment. The allegation contained in the grounds

2. Plaintiff’s ground of appeal

On the grounds indicated in its reasoning, the lower court determined that it was insufficient to recognize that there was a proximate causal relation to the Plaintiff, which exceeds the expense for requesting the collection order, due to the unlawful act committed by the public official in charge of the instant payment

In light of the records, the fact-finding and determination by the court below are justifiable. Contrary to the allegations in the grounds of appeal, there were no errors by misapprehending the legal principles as to damages, amount, proximate causal relation, etc. in damages, thereby failing to exhaust all necessary

3. Conclusion

Therefore, without further proceeding to decide on the remainder of the Defendant’s grounds of appeal, the part against the Defendant is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. The Plaintiff’s appeal is dismissed. It is so decided as per Disposition by the assent of all participating

Justices Cho Jong-hee

Justices Kim Chang-tae, Counsel for the defendant

Justices Park Sang-ok