01. The gender of comparative negligence where a creditor has committed a tort against a debtor on the ground that he/she has not repaid;

In cases where a creditor has filed a claim for damages by committing a tort on the ground that he/she does not repay, barring special circumstances, it cannot be deemed that there has been negligence that caused a tort to the debtor.

Article 396 of the Civil Act

[Judgment of the court below]

Defendant 1 et al.

Seoul High Court Decision 73Na2096 delivered on August 23, 1974

The part of the judgment of the court below against Defendant 1 shall be reversed, and this part shall be remanded to the Seoul High Court.

The Defendants’ appeals are all dismissed, and the costs of appeal are assessed against the Defendants.

(A) First, we examine the Plaintiff’s agent’s grounds of appeal.

The court below recognized the fact that the light boarding of the plaintiff's name permitted in this case is managed jointly by three persons, including the plaintiff and his parents, and the defendant 1 lent 430,200 won over two occasions to the plaintiff's mother and the plaintiff's mother to the plaintiff's father and extended the 4th floor of the above light boarding house. In determining the records, the court below is legitimate in examining the process of documentary evidence based on the premise of this fact finding, and there is no other ground of violation of the rules of evidence, such as the permit which admitted facts without evidence or violated the rules of experience.

Next, the court below acknowledged that Defendant 1 loaned KRW 430,200, which was requested under the pretext that it is necessary to liquidate bank debts against the 3rd floor building of this case owned by Shin Young-chul, among monetary transactions, such as the Plaintiff's purchase of the 3rd floor by his invitation from the Plaintiff's mother and his leader, and that he did not leave the said money until he received the payment of the money, but he could not be paid the money by any justifiable means because he delayed the payment of the above money due to the lack of financial resources, and the Defendants could not receive the payment of the money from the above 3rd floor of this case. However, the court below did not err in the misapprehension of legal principles as to the negligence of this case, since the court below did not err in the misapprehension of legal principles as to the negligence of this case.

(B) We examine the Defendants’ grounds of appeal. According to the facts acknowledged by the lower court, all the Defendants were in a room of light capital, which the Plaintiff operated without the Plaintiff’s consent, and the Defendants conspired with each other to hold such illegal possession. Such fact-finding is lawful, and if the Defendants jointly committed a tort, it is natural in light of the legal doctrine that the Defendants jointly and severally liable for damages.

Accordingly, the part of the judgment of the court below against the plaintiff 1 is reversed, and that part is remanded to Seoul High Court. The defendants' appeals are all dismissed, and the costs of appeal are assessed against the defendants. This decision is delivered with the assent of all participating judges.

Justices Han-jin (Presiding Justice)