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1. The plaintiff's claim is dismissed.
2. The costs of lawsuit shall be borne by the Plaintiff.
Reasons
1. Determination on this safety defense
A. Since the defendant filed a lawsuit against the plaintiff seeking the payment of insurance money for which the plaintiff seeks confirmation of non-existence of payment obligation in this case, the defendant's defense of this case that the plaintiff's lawsuit seeking confirmation of non-existence of payment is unlawful as there is no benefit of confirmation.
B. While a lawsuit claiming performance against a debtor is pending, there is no benefit in the lawsuit to seek confirmation of the absence of the obligation (see, e.g., Supreme Court Decision 2001Da22246, Jul. 24, 2001). The principal lawsuit lawfully filed by meeting the requirements for the lawsuit is not unlawful again due to a counterclaim instituted by the other party. Thus, if the plaintiff sought confirmation of the absence of the liability for damages against the defendant as the principal lawsuit because of the benefit in seeking confirmation of the non-existence of the liability for damages, the defendant subsequently filed a counterclaim seeking the performance of the liability for damages.
Even if such circumstance alone, it cannot be deemed that the principal lawsuit is unlawful due to the extinguishment of the benefit of confirmation on the principal claim.
(see, e.g., Supreme Court Decision 2010Da2428, 2435, Jul. 15, 2010). Such legal doctrine ought to be deemed the same in cases where a lawsuit seeking performance of an obligation is instituted separately in a separate lawsuit in the status of filing a lawsuit for confirmation of existence of an obligation.
C. On November 21, 2017, the Defendant filed a lawsuit against the Plaintiff seeking the payment of the insurance money for which the Plaintiff sought confirmation of non-existence of the payment obligation (Seoul Central District Court 2017Da5219822) and the appellate trial is continuing to exist, or may be recognized in light of the overall purport of pleadings on the evidence No. 12. However, the fact that the instant lawsuit was filed on September 26, 2017 prior to the filing date of the claim for the performance of the said obligation and the duplicate of the complaint was served on the Defendant on October 13, 2017 is apparent in the record.
(e).