2014Da216461 Compensation (ar)

1. A;

3. C.

4. D;

5. E.

6. F;

7. G.

2. B

Korea

Busan High Court Decision 2013Na52745 Decided June 19, 2014

January 28, 2016

1. Of the judgment below, the part of the claim extended by the court below is reversed, and that part of the case is remanded to Busan High Court.

2. Of the lower judgment, Plaintiff B is reversed. This part of the lawsuit was concluded on April 7, 2014 as the withdrawal of the lawsuit.

3. All of the defendant's appeals against the plaintiffs except the plaintiff B are dismissed.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Ex officio determination on Plaintiff B

According to the records, Plaintiff B, the heir of the network AL, clearly stated that a part of the claim is a claim against the Defendant, and received a favorable judgment in the first instance trial, and the remaining Plaintiffs (the heir of the network AL) except Plaintiff G, thereafter, agreed on the division of inherited property on March 14, 2014 by Plaintiff B’s inheritance. The Plaintiff’s legal representative submitted an application for modification of the purport of the claim and the cause of the claim, stating that “the Plaintiff B withdraws the lawsuit in this case according to the agreement on the division of inherited property on April 7, 2014,” and the Defendant was served with the application for modification on April 8, 2014, and did not raise an objection to the withdrawal of the lawsuit within two weeks thereafter.

Therefore, among the instant lawsuits, the part of Plaintiff B’s claim was submitted to the lower court on April 7, 2014 and the application form for alteration of the purport of the claim and the cause of the claim was served, and the Defendants failed to raise an objection within two weeks, and thus, the lawsuit cannot be duly withdrawn before the judgment of the lower court is rendered and the lawsuit cannot be held. Nevertheless, the lower court rendered a judgment that dismissed the Defendant’s appeal on the part of the lawsuit. In so doing, the lower court erred by misapprehending the legal doctrine on the principle of disposition right under Article 203 of the Civil Procedure Act.

2. Judgment on the defendant's grounds of appeal against the remaining plaintiffs except the plaintiff B

In light of the relevant legal principles and records, the court below was just in determining the amount of consolation money for the victims, their spouses, parents, and children in the original adjudication, and the defendant's objection to the explicit claim of the plaintiffs other than the plaintiff B constitutes abuse of rights. In so doing, contrary to what is alleged in the grounds of appeal, the court below did not err by exceeding the discretionary power of the fact-finding court as to the calculation of consolation money or by misapprehending the legal principles as to the abuse of rights of the defense of extinctive prescription, or by

3. Judgment on the grounds of appeal by the plaintiffs except the plaintiff B (hereinafter in this paragraph referred to as "the plaintiffs").

A. According to the records, the Plaintiffs clearly stated that part of the claims is a claim and received a favorable judgment from the first instance court by filing a claim for damages against the Defendant, and as seen earlier, the remaining Plaintiffs except Plaintiff G agreed on the division of inherited property on March 14, 2014. The Plaintiffs’ legal representative submitted to the lower court an application for modification of the purport of the claim and the cause of the claim, which expands the Plaintiffs’ claim by a claim, in whole, from a partial claim on April 7, 2014.

B. However, the court below indicated in the judgment below's purport of the claim that "the whole claim amount of the plaintiffs expanded from the original trial" and stated in Paragraph (1) of the above article that "the defendant's appeal and the claims of the plaintiffs expanded from the original trial all are dismissed," but it cannot accept the argument that the whole amount of consolation money claimed by the plaintiffs should be recognized in light of the relation with other cases for which judgment became final and conclusive. In this case where the court below did not explain the grounds for dismissing the plaintiffs' claim extended in the judgment of the court of first instance, while stating that "the plaintiff is a part of consolation money," the defendant is liable to pay the same amount as the cited amount in the judgment of the court of first instance as the compensation amount at the request of the plaintiffs."

As above, the court below did not explain the grounds for dismissing the part of the above claim extended by putting this into consideration in the order of judgment, purport of the claim, and part of the reasoning of the judgment below when the plaintiffs extended part of the claim to the court below for the whole of the plaintiff's claim. The judgment of the court below as to the extended claim is erroneous in the reasoning and the reasoning, and it constitutes the ground for reversal under Article 424 (1) 6 of the Civil Procedure Act. In addition, the court below should have made a judgment as to the plaintiff Eul's argument that the plaintiff Eul received inheritance by inheritance through the agreement on the division of inherited property. However, the court below erred by omitting its judgment, which affected the conclusion of the judgment. The ground for appeal pointing this out is with merit.

4. Conclusion

Therefore, without further proceeding to decide on the remainder of the grounds of appeal, ① the part of the lower judgment regarding the claim expanded by the lower court is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. ② The part regarding the claim by Plaintiff B among the lower judgment is reversed, and the Supreme Court is sufficient to render a direct judgment. As such, this part of the lawsuit is declared to have been terminated by the withdrawal of the lawsuit on April 7, 2014, and ③ all of the Defendant’s appeals against the Plaintiffs except Plaintiff B are dismissed. It is so decided as per Disposition by

The presiding judge shall keep the record of the Justice

Justices Kim Yong-deok

Chief Justice Park Jong-young

Justices Kim Jae-han