2019Da285837 Compensation, etc.

A

Attorney Park Young-young, Counsel for the defendant-appellant

B

Attorney Lee Jae-soo et al.

Attorney Kim Gi-ju, and Kim Han-ju

Busan District Court Decision 2019Na42310 Decided October 18, 2019

February 27, 2020

The judgment below is reversed, and the case is remanded to Busan District Court.

The grounds of appeal are examined.

1. The selective consolidation of claims is a form of seeking adjudication as to several claims on the condition that one claim be accepted in a case where a claim is sought to the same purport by a number of claims that are compatible or where the same formative effect is sought based on a right to form several compatible claims. As such, in the case of selective consolidation, several claims are indivisible into one litigation procedure, and thus, it is unlawful to dismiss only one of the selective claims and to decide on the other selective claims (see, e.g., Supreme Court Decision 2015Da42599, Oct. 26, 2017).

In a case where several claims are selectively joined from the beginning in the first instance court, and the defendant filed an appeal, and the judgment accepting one of them is sentenced to a judgment accepting one of them, as well as where the defendant brought an appeal, and the appellate court rendered a transfer to the appellate court as to the judgment accepting the plaintiff's claim, even in a case where the claims are selectively joined after the defendant filed an appeal, the appellate court does not need to first examine and determine the claims cited in the first instance court, and even in a case where several selective joined claims which are not tried in the first instance court among several claims, the appellate court may freely select and judge the claims which are not tried in the first instance court. However, even if it is recognized as reasonable as a result of the examination and the conclusion is the same as the order of the first instance court, the appellate court shall not dismiss the defendant's appeal, and shall declare the order accepting a new claim after cancelling the first instance

2. A. Review of the reasoning of the lower judgment and the record reveals the following facts.

1) In the first instance court, the Plaintiff filed a claim for damages arising from the Defendant’s tort and was sentenced to a judgment against the Plaintiff.

2) After filing an appeal against the judgment of the court of first instance on May 15, 2019, the Plaintiff added a claim for restitution based on the cancellation of the sales contract to the title “additional cause of claim” from the preparatory brief dated May 15, 2019. In the purport of the claim and appeal, the lower court stated that “the Plaintiff filed a claim for damages arising from a tort and changed the cause of claim for restitution due to the cancellation of the sales contract in the original court,” and that “the Plaintiff dismissed the claim for restitution arising from the cancellation of the sales contract” in the reasoning of the judgment. However, in light of the legal principles as seen earlier, it is apparent that the Plaintiff added a claim for restitution based on a tort, which was caused by the cancellation of the sales contract, and it should be deemed that the above two claims were not legally incompatible, and thus, the lower court should have determined another claim, but should not dismiss the Plaintiff’s appeal, and should not dismiss the Plaintiff’s appeal.

C. Nevertheless, the lower court deemed that, by misapprehending the Plaintiff’s cause of claim, the Plaintiff changed the claim for damages arising from tort to its original state due to the rescission of a sales contract, omitted judgment as to part of the selective joined claims and omitted the order concerning the joined claims in the lower court. Such determination by the lower court is erroneous in the misapprehension of the Supreme Court’s judgment as to the interpretation of statutes applicable to specific cases under Article 3 subparag. 2 of the Trial of Small Claims Act, which affected the conclusion of the judgment. The grounds for appeal

3. Conclusion

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Noh Jeong-hee

Justices Park Sang-ok

Justices Noh Jeong-chul

Justices Kim In-bok