(영문) 서울고등법원 2018.10.25 2012나13325

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(영문) 서울고등법원 2018.10.25 2012나13325

부당이득금

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1. Of the judgment of the court of first instance, the part against the defendant exceeding the amount ordered to be paid below is revoked, and above.

Reasons

1. The reasons why the court shall explain this part of the underlying facts are below the end of paragraph 1.

Except for adding a claim, the reasoning of the judgment of the court of first instance is the same as that of the judgment of the court of first instance.

H. Meanwhile, on July 5, 2017, while the appeal of this case was pending, the Plaintiff submitted the written withdrawal of the lawsuit to this court with the consent of the Defendant.

2. Determination on the validity of withdrawal of the plaintiff's lawsuit

A. The relevant legal principles have no choice but to determine its validity on the basis of its external indication rather than that of internal decision, and the provisions concerning legal acts under the Civil Procedure Act are not applied to litigation under the provisions of Acts and subordinate statutes and other special circumstances. Thus, barring special circumstances, the litigation cannot be cancelled on the ground of defects in internal declaration of intention by mistake, deception, coercion, etc. of the litigant, but the litigant and the litigants have a duty to perform the litigation in good faith. Thus, if the litigant who gains profits from any of the litigants by deception or coercion of the litigant and interfere with the other party's normal performance of litigation actively by deceiving or coercion of the litigant, the litigant's deception and other acts violate the principle of good faith (see Article 150 of the Civil Act). Thus, it is reasonable to deem that the litigant's deception and other acts constitute a special circumstance in which the litigant can assert the defects of the litigant's lawsuit (see Article 150 of the Civil Act) and then, at the first instance trial against the defendant who has raised the lawsuit, the plaintiff's lawsuit to be withdrawn by deception.

Supreme Court Decision 2004No. 27 delivered on April 27, 2004

참조조문

유사 판례

-인천지방법원 2018.06.22 2018노710

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-의정부지방법원 2014.12.03 2013가합12300

-대법원 1970. 6. 30. 선고 70후7 판결