Where a claim has been reduced in the appellate court and the claim has been expanded within the scope of the subject matter of lawsuit that has been reduced, the effects of such expanded

The reduction of a claim in the appellate trial shall be deemed to have been withdrawn, and even if the part of the reduction falls under the withdrawal after the final judgment is rendered, it is unlawful as it goes against the principle of prohibition of re-appeal.

Article 240 of the Civil Procedure Act

Dong Passenger Corporation

Scholarships et al. and two others

Seongbuk-gu Seoul Central District Court Decision 75 Gohap617 delivered on April 1, 198

1. Of the plaintiff's primary claims, the amount of 24,547,050 won and the interest rate of 5% per annum from January 4, 1976 to the full payment rate shall be dismissed.

2. The plaintiff's appeal is dismissed.

3. The defendant shall pay to the plaintiff the amount of KRW 724,725 and the amount calculated by the rate of five percent per annum from January 4, 1976 to the full payment.

4. The plaintiff's conjunctive claim is dismissed.

5. The costs of the lawsuit shall be ten minutes through the first and second trials, and the costs of the lawsuit shall be borne by the plaintiff and the remainder shall be borne by the defendants.

The plaintiff shall revoke the original judgment.

The main claim is the amount of 29,547,050 won and the amount calculated by the rate of 5% per annum from January 4, 1976 to the date of full payment. (The plaintiff sought payment of 38,394,160 won and interest for delay from the original judgment and reduced the amount of 5,000,000 won and interest for delay from May 3, 1977. (The plaintiff finally expanded the claim as of December 15, 1978.) The defendants jointly and severally paid to the plaintiff the amount of 14,798,525 won and the amount calculated by the rate of 5% per annum from January 4, 1976 to the date of full payment. (The plaintiff sought payment of 38,394,160 won and interest for delay from the original judgment, but finally expanded the claim as of December 15, 1978.)

The total cost of the lawsuit is the judgment of the defendants and the declaration of provisional execution.

1. Determination on the part of the plaintiff's primary claim which exceeds the amount of 5,00,000 won with the rate of 5% per annum from January 4, 1676 to the date of full payment.

According to the records, the plaintiff sought payment of the amount of 38,394160 won and the amount at the rate of 6% per annum from November 7, 1972 to the full payment rate of 1972, but filed an appeal against the whole of the dismissed judgment, which was sentenced to a judgment against the whole of the dismissed judgment. However, the purport of the claim from May 3, 197 and the application form for change of cause were 5,000 won from November 7, 1972 to the full payment rate of 6,00 per annum from 15,00 won to 15,000 won, and the purport of the claim was 15,000 won from 15,000 won, 200,000 won to 25,000 won, 200,000 won, 200,000 won, 196, 196, 14, 1975, 197.

In light of the above, if the plaintiff filed a claim for payment of 38,394,160 won and damages for delay and filed an appeal after having received a judgment against the entire rejection of the claim, and then reduced the claim amounting to 5,000,000 won and damages for delay, the part of the lawsuit against the claim amounting to 5,000,000 won and damages for delay shall be deemed to have been withdrawn. According to the records, the defendant made a pleading without raising an objection against reduction of the above claim, and thereafter, is dissatisfied with the extension of the plaintiff's claim, it shall be deemed that the defendant impliedly consented to reduction of the claim amount in light of the whole purport of the pleading.

However, according to Article 240(2) of the Civil Procedure Act, among the claims for damages caused by the tort of the Plaintiff, the provisions of the same Act shall apply even in cases where the previous suit and the new suit that were newly filed cannot be filed by the same person after the final judgment on the merits has been rendered, and the previous suit cannot be filed by an independent lawsuit. Thus, among the claims for damages caused by the tort of the Plaintiff, the extension of the purport of the claim exceeding KRW 5,00,000 maintained at the time of reduction of the purport of the claim in the trial and the damages for delay (the claim for extension of the original suit shall be KRW 29,547,050, a sum of KRW 38,394,160, among the claims for damages caused by the original suit, the same right, which is the subject of the lawsuit, is in conflict with the principle of prohibition of re-appeal, and its expanded part (such as gold 29,547.050,050, etc.) cannot be deemed unlawful

Therefore, among the claims for damages caused by the plaintiff's tort, the part exceeding the amount of KRW 5,00,000 and the amount of KRW 5% per annum from January 4, 1976 to the date of full payment cannot be exempted.

2. Of the plaintiff's primary claims, the amount of 5 million won and the amount with the rate of 5 percent per annum from January 4, 1976 to the full payment rate

(a)Liability for damages;

성립에 다툼이 없는 갑 2호증(판결), 원심이 검증한 형사기록중에 나오는 검사작성의 차병춘, 조영호, 정영환에 대한 각 진술조서의 기재, 원심 및 당심증인 김동진의 증언에 당사자변론의 전취지를 종합하여 보면, 원고회사가 1972.11.2. 13:00경 신진자동차 공업사라는 상호 아래 자동차 정비업을 공동경영하는 피고들에게 원고회사 소유의 서울 영 5-5792호 시내버스를 갑종정기검사에 대비하기 위한 점검 및 정비를 하여 줄 것을 의뢰하고 피고들은 그들의 피용인인 정비주임 소외 곽유태로 하여금 위 버스를 점검, 정비하였던 바, 갑종정기검사를 위한 점검, 정비를 함에 있어서는 앞뒤 네 바퀴의 하부를 분해하여 휠실린더의 고무, 라이닝, 넉클, 베어린 등의 노휴나 그로 인한 유격유무, 낫트의 피치의 마모 유무들을 확인하고 이상이 없을 때에는 새 그리스를 주입하여 다시 조립하여야 하는 사실, 그런데 위 소외 곽유태는 위 버스를 점검, 정비함에 있어서 소외 정비공 김정구에게 왼쪽바퀴를, 소외 정비공 정용환에게 오른쪽 바퀴를 각 분담하여 분해하도록 지시하여 위의 점검사항들을 점검하게 하였을 뿐 정비주임인 위 소외인 자신이 직접 위 점검사항들을 세밀히 점검하지 아니하였을 뿐 아니라 위 소외 정비공들이 마친 점검결과를 사후에라도 다시 확인하지 아니하여 위 버스 왼쪽 앞바퀴의 낫트의 피치의 마모가 심하여 헐거웠다는 것을 발견하지 못하고 따라서 마모된 낫트를 새것으로 교체하거나 원고회사에게 그 교체를 권고하거나 마모 사실을 알려주는 등의 조치를 취하지 아니한 채 위 버스의 점검, 정비를 제대로 마친 듯이 원고회사에게 위 버스를 인도하여 정상운행하게 한 사실, 원고회사 운전사인 소외 강길종은 위 버스가 제대로 점검, 정비된 것으로 알고 1972.11.6. 07:15경 정원57명의 위 버스에 약130명 내지 140명이나 되는 승객을 태우고 서울 성북구 상계동 시발점으로부터 서울시내를 향하여 위 버스를 운행하던 중 그날 07:20경 위 상계3동 198 앞 노상을 통과할 무렵 도로 중앙부분 포장지대의 중앙선 부분에 자전거를 타고 오는 성명불상의 중학생 2명을 목격하고 이를 피하려고 핸들을 급격히 왼쪽으로 돌려 버려 버스의 왼쪽 앞바퀴가 도로의 포장부분 바깥쪽 비포장부분으로 벗어 나면서 약 10미터 전진하다가 약 15도 경사진 하천뚝대 쪽 가까이의 움푹 파진 곳으로 왼쪽 앞바퀴가 빠져 들어가자 승객들이 그쪽으로 쏠리면서 하중이 일시에 그쪽으로 몰리게 되고 위 강길종이 다시 정상궤도로 나아가려고 핸들을 오른쪽으로 돌리자 진행하던 타력으로 하중이 더욱 왼쪽 앞바퀴 쪽으로 몰리게 되어 그 중량에 못 이겨 마모된 위 왼쪽 앞바퀴의 낫트가 빠지면서 그 바퀴도 따라서 함께 탈락되고 이어 버스 차제가 왼쪽으로 기울어지면서 약 2미터 아랫쪽 하천으로 추락전복하여 버스 승객중 27명이 사망하고 106명이 상해를 입었으며 버스 차체가 대파된 사실을 인정할 수 있고, 위 인정을 뒤집을 만한 증거가 없다.

According to the above facts, this accident is likely to prevent the accident by easily finding out the fact that the quind of the above bus was finished at the left side of the bus, and by neglecting this fact, and by failing to take any proper measures against the math of the above math, it was caused by the negligence of inspecting and maintaining the plaintiff company's operation of the above bus without taking any proper measures against it such as replacement of the above math, so the defendants are liable to compensate for all damages related to the accident suffered by the plaintiff company due to the accident, as the user of the above math oil.

On the other hand, according to the above facts, the accident is caused by the non-party's negligence in driving of the non-party driving the vehicle in a situation where the vehicle's engine scams more than twice the fixed number of passengers on the bus, and where the obstacles appear on the bus scambly, the vehicle should be driven slowly and slowly, as appropriate, in order to avoid the bicycle on the way due to the failure to exercise due diligence, and the driver's negligence in driving of the non-party driving the vehicle is partly concurrent, and it is reasonable to view that the ratio of the negligence in driving of the non-party driving the vehicle is 1/2 each.

(b)amount of damages;

The plaintiff asserts that this case's tort sustained 29,547,050 won in total as follows:

(1) When requesting repair of the instant bus to the Defendants for the maintenance of Class A automobiles and for regular inspection, the Plaintiff requested 16 buses with 15 other buses of the Plaintiff Company. Since the Plaintiff spent KRW 4,687,050 to the Defendants in total with the repair cost, the repair and inspection costs for the instant bus are 292,940,000,000 won which are 1/16 of that amount.

(2) Since the business license of the Plaintiff Company was revoked immediately after the instant accident, the 16th car was removed and the 5th car body was removed by the group, and the damage was 3,200,000 won per 1,000 won.

(3) A new automobile was purchased on a monthly basis, and operated a monthly installment. The Plaintiff’s business license was revoked, and thus, the vehicle was recovered and lost its payment. The amount was 4,400,000 won in total.

(4) The amount of damages ordered to be paid to the deceased’s surviving family members and wounded’s surviving family members due to the instant accident against the Plaintiff is KRW 647,110 in total.

(5) The total amount of money paid in consultation with the deceased's surviving family members and the wounded is KRW 1,257,000.

(6) The insurance money that the Plaintiff subscribed to the insurance and paid to the deceased and the wounded was the aggregate of 19,800,000

More than anything else, the total amount of KRW 29,597,050 (the purport of the claim is KRW 29,547,050) was suffered.

The part dismissed in the above 1 is in excess of 5,00,000 won out of the plaintiff's claim amount, and its duplicate is unclear as to which part of each of the above damages is applicable to the plaintiff's claim. Thus, the part is judged as to each of the above damages by the plaintiff's first priority.

The above (1) Maintenance Costs of the plaintiff's above (2) cannot be viewed as damages caused by this accident, since it is obvious that the plaintiff was paid by the repair and maintenance contract between the plaintiff's owner and the defendant, and damages incurred by the plaintiff's company due to the plaintiff's negligence in conducting any duty or supervision over the 16th bus, and cannot be viewed as damages related to the accident (the plaintiff's losses caused by the decrease in the exchange value arising from the dissolution of the bus above). The above (3) damages are not asserted by the plaintiff's tort liability for damages caused by the plaintiff's failure to pay damages to the non-party's damages to the non-party 1, the defendant's damages cannot be viewed as compensation liability for damages caused by the plaintiff's negligence and the non-party 4's tort liability for damages caused by the non-party 1, the plaintiff's damages to the non-party 1, the defendant's own damages liability for damages caused by the plaintiff's damages to the non-party 1, the plaintiff's own damages liability for damages caused by the above damages to the non-party 4, as the plaintiff's damages liability for damages.

Therefore, the plaintiff's primary claim (such as KRW 5,00,000 and damages for delay) is groundless unless there is any assertion or proof as to other damages related to the accident.

3. As to the plaintiff's conjunctive claim

A. In addition, the Plaintiff suffered losses from KRW 29,597,050, which was claimed in the above 2B due to the instant accident, 29,442,390, which was calculated by subtracting KRW 154,660 from the amount of 29,59,050, which was claimed in the above 2B, from the amount of 154,660,000, and on the premise that the Defendants, a joint tortfeasor and the negligence on the part of the Plaintiff, filed a preliminary claim with the Defendants for an exercise of the right to indemnity against the Defendants for an amount equivalent to KRW 14,798,525, which is the half of the amount of 14,798,525, which is the half of the amount of 5% per annum from January 4, 1976 to the date of full payment (the amount of 29,442,390 won per the Plaintiff’s head).

B. We examine the facts that the plaintiff company paid KRW 520,00 in total to the non-party 1 and the deceased 20,000 in consolation money, etc. and KRW 137,00 in total to the non-party 9,000 in treatment expenses, etc. under agreement with the non-party 2 as damages for treatment of the non-party 47,10 won after discharge, and the non-party 2 was paid to the non-party 4 (the non-party 4,000 won in total) from the non-party 4, and the non-party 4,00 in advance of the evidence No. 3-1,2 (judgment) as well as the testimony of the witness Kim Dong-jin who had no dispute over the establishment of this case. Thus, the plaintiff company did not have any further claim that the non-party 2 paid the above amount to the non-party 4, which is the co-party 5,000 won in total (the non-party 4,000 won in total).

Therefore, as seen above, the liability of the plaintiff company and the defendants for damages as joint tortfeasor was jointly discharged within the scope of the above contribution. Therefore, the defendants are obligated to pay 724,725 won per half of the defendants' share of the above amount 1,449,450 won as compensation liability. Since the setting of the money of the plaintiff company is recognized as the transfer of the principal lawsuit in the whole purport of oral argument, the plaintiff company is obligated to pay the legal interest at the rate of 5% per annum of the Civil Code from January 4, 1976 to the date of full payment after the delivery that the plaintiff seeks with respect to the above money.

4. Conclusion

Ultimately, the part of the plaintiff's primary claim (claim for Damages) seeking payment of 24,547,050 won and damages for delay at the rate of 5% per annum from January 4, 1976 to the full payment rate is unlawful, and it is dismissed as the remainder of 5,000,000 won and the above damages for delay are without merit. Thus, the court below's decision that dismissed the plaintiff's claim for damages in whole is just and without merit, and the plaintiff's appeal is just, and it is dismissed as the plaintiff's appeal is without merit. The preliminary claim which the plaintiff additionally joined at the court of appeal is justified within the above recognized limit and justified, and the remainder is dismissed as it is unfair, and Article 99 of the Civil Procedure Act shall be applied to the payment of costs of lawsuit and Article 96, 89, 92, and 93 of the Civil Procedure Act shall be applied to the declaration of provisional execution. It is so decided as per Disposition.

Judges Lee Young-soo (Presiding Judge)