Whether a counterclaim that does not contain more active contents than seeking dismissal of a claim for a principal action is legitimate (negative)

If a counterclaim does not include more active contents than seeking the dismissal of the principal claim, there is no benefit as a counterclaim, and filing a counterclaim for the confirmation of existence of the same obligation with respect to a claim based on a certain claim is unlawful since the content of the claim is to seek the dismissal of the principal claim.

Articles 250 and 269 of the Civil Procedure Act

Supreme Court Decision 64Da903, 904 Delivered on December 22, 1964 [Non-resident III-1, 230(2)];

Plaintiff, Ltd.

Defendant

An intervenor;

Busan District Court Decision 2004Na6563, 6570 decided May 13, 2005

All appeals are dismissed. The costs of appeal are assessed against the Defendant (Counterclaim) and the Defendant (Counterclaim Plaintiff) supplementary intervenor through the principal lawsuit and counterclaim.

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

1. Judgment on the main lawsuit

With respect to the plaintiff (Counterclaim defendant, hereinafter "the plaintiff")'s claim on September 15, 2001 against the defendant (Counterclaim plaintiff, hereinafter "the defendant") for a loan of four million won (hereinafter "the loan of this case") and delayed payment, the court below rejected the plaintiff's claim for illegal consideration since the contract of this case was concluded at will by the defendant's employee who did not receive power of representation from the defendant, and the contract of this case is null and void.

In light of the records, the judgment of the court below is just, and there is no violation of the law such as lack of reason, contradiction of reason, violation of the rules of evidence, incomplete deliberation, misapprehension of legal principles, and violation of the Constitution.

In addition, the argument in the grounds of appeal that the damage claim that the Defendant used as an automatic claim from the set-off defense includes the penal or punitive damage claim shall not be a legitimate ground of appeal as a new argument that was first raised in this court. All the arguments in the appeal are without merit.

2. Judgment on the counterclaim

A. As to the main counterclaim

If a counterclaim does not include more active contents than seeking the dismissal of the main claim, there is no benefit as a counterclaim (see Supreme Court Decision 64Da903, 904 delivered on December 22, 1964). Thus, filing a counterclaim for the confirmation of existence of the same claim against a suit for performance based on a certain claim is unlawful since the content of the claim is merely seeking the dismissal of the main claim.

In the same purport, the court below is just in holding that the defendant's primary counterclaim seeking confirmation of the non-existence of the loan of this case and its damages for delay is unlawful merely because it seeks to dismiss the claim of this lawsuit, and there is no error of law such as the lack of reason, mistake of reason, misunderstanding of legal principles, and violation of the Constitution as otherwise alleged in the

B. As to the conjunctive counterclaim

The court below rejected the judgment of the court of first instance on the ground that the plaintiff concealed the claim for the loan of this case and sought the payment of the loan of this case with the principal lawsuit, even though the loan of this case was extinguished by set-off against the cancellation refund claim of this case as indicated in its holding, it cannot be deemed that there was a deceptive act by the plaintiff on the ground of its stated reasoning, as to the defendant's conjunctive counterclaim seeking the payment of consolation money equivalent to the cancellation refund money

In light of the records, the judgment of the court below is just, and there is no error of law such as the lack of reason, contradiction of reason, misunderstanding of legal principles, and violation of the Constitution as otherwise alleged in the ground of appeal. All appeals are without merit.

3. Conclusion

Therefore, all appeals are dismissed, and the costs of appeal are assessed against the defendant and the intervenor joining the defendant through the principal lawsuit and counterclaim. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Nung-hwan (Presiding Justice)