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(영문) 대법원 2016.09.08 2016다19756
채무부존재확인등
Text

The part of the judgment of the court below on principal lawsuit and counterclaims pertaining to the unpaid installment for each device shall be reversed, and this part of the case shall be reversed.

Reasons

The grounds of appeal are examined.

1. With respect to the installment payment for which the main claim and the counterclaim are unpaid, even where the main claim and the conjunctive claim are compatible, if a party needs reasonable necessity to make a claim by attaching the order of the trial and attaching the order of the trial;

The main claim is not wholly accepted (see, e.g., Supreme Court Decision 2001Da17633, Feb. 8, 2002). In such a case, where the main claim is not accepted, the main claim may be filed by combining it with the purport that it is possible to determine the main claim within the scope of the amount not accepted from the main claim and at the same time to determine the cycle

(2) According to the records, the Plaintiff and the Plaintiff (Counterclaim Defendant; hereinafter “Plaintiff”) filed a first claim against the Defendant (Counterclaim Plaintiff; hereinafter “Defendant”) against the Defendant (Counterclaim Plaintiff; hereinafter “Defendant”), claiming that “the Plaintiff does not have the Plaintiffs’ liability to compensate for damages with respect to the Defendant’s mobile phone subscribers opened through the written application for membership from May 2012 to November 2012, 2012.” Accordingly, the Defendant filed a claim against the Plaintiffs for payment of the amount equivalent to the unpaid installment amount related to the mobile phone opened as above. In relation to the aforementioned counterclaim, the Defendant specifically asserted that “The Plaintiff is liable for damages due to nonperformance of each of the claims based on the contract on behalf of an agent and sales proceeds,” and the Defendant specifically asserted that the cause of the tort was “liability for damages due to nonperformance of each of the claims based on the order of the aforementioned claims.”

Examining the above facts in light of the legal principles as seen earlier, the lower court.

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