(영문) 서울남부지방법원 2019.05.02 2018나805

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(영문) 서울남부지방법원 2019.05.02 2018나805

손해배상(기)

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1.The judgment of the first instance shall be modified as follows:

The defendant shall pay to the plaintiff KRW 1,513,497 as well as November 2017.

Reasons

1. The scope of the trial at this court claimed the money as stated in the above claim against the defendant and claimed for the amount of KRW 25,852,906 and damages for delay. The court of first instance accepted part of the main claim by viewing it as the real main and preliminary claim and dismissed the remainder of the main claim and the conjunctive claim.

Accordingly, the Defendant appealed on the part of the judgment of the court of first instance, which is the part against which the Defendant lost, as to the part concerning the main claim, and the Plaintiff appealed on the part concerning the main claim among the judgment of the court of first instance, which is the part concerning the main claim. If the Plaintiff’s conjunctive claim is the main claim in the real lawsuit, the scope of the judgment of the court is limited to the part concerning the main claim

However, the conjunctive claim must be in a non-conformity with the primary claim. As such, a claim that reduces part of the primary claim in a quantitative and qualitative manner with respect to the same subject matter as the primary claim is merely absorption of the primary claim (see, e.g., Supreme Court Decision 2015Da65042, Oct. 31, 2017). In such a case, there is no need to separately determine the reduced quantity of claim.

With respect to the plaintiff's conjunctive claim, the plaintiff joined the conjunctive claim for damages caused by the tort with different arguments on the method of calculating the amount of damages.

Thus, the plaintiff's preliminary claim is not inconsistent with the primary claim, and it is not a claim that reduces only the amount of the main claim as the same cause for the same subject matter, and there was no need to separately determine it as the first instance court.

Nevertheless, the first instance court considers it as a preliminary claim in the real lawsuit and is the primary claim.

참조판례

-대법원 2017. 10. 31. 선고 2015다65042 판결

유사 판례

-서울고등법원 (춘천) 2018.07.04 2017나1313

-서울중앙지방법원 2020.06.25 2020나9250

-광주고등법원(전주) 2019.04.18 2018나11065

-대법원 2017.02.21 2016다225353

-서울중앙지방법원 2017.12.29 2016가단5016835