[1] Whether it is permissible to render a judgment only on some co-litigants or to render an additional judgment on behalf of the remaining parties in a subjective and preliminary co-litigation (negative), and in case where either the primary co-litigants and any conjunctive co-litigants file an appeal, whether the part of the claim against other co-litigants becomes subject to the judgment on appeal (affirmative)

[2] Whether a part of the co-litigants may withdraw a lawsuit in a subjective and preliminary co-litigation or withdraw a lawsuit against a part of the co-litigants (affirmative), and in such a case, whether the remaining part of the claim concerning the co-litigants who did not withdraw the lawsuit is still subject to the judgment of the court (affirmative

[3] In a case where an intermediary assistant who is a negligent tort is liable for a joint tort with a tort committed intentionally, whether a comparative negligence may be set off by taking account of the victim's negligence when determining the amount of damages (affirmative), and whether the liability may be set off more narrowly than the intermediary assistant in consideration of the individual circumstances such as the fact that the broker assistant did not participate in the tort when determining the amount of damages by the broker assistant (affirmative)

[4] Whether it is a fact-finding court’s exclusive authority to determine facts or ratio as to the grounds for comparative negligence (affirmative in principle)

[1] A subjective and preliminary co-litigation is a form of litigation in which all co-litigants settle the dispute between each other in relation to the same legal relationship in a lump sum without contradiction (Article 70(2) of the Civil Procedure Act). It is not permitted to render a judgment only to some co-litigants, or to render an additional judgment on behalf of the remaining parties, for the remaining parties. In addition, if one of the primary and preliminary co-litigants files an appeal in a subjective and preliminary co-litigation, the confirmation of the part of the claim against other co-litigants shall also be prevented, and it shall be subject to adjudication by the appellate court.

[2] While the Civil Procedure Act requires the application of Articles 67 through 69, which are provisions concerning indispensable co-litigation with respect to subjective and preliminary co-litigation, in the case of withdrawal of a lawsuit, exceptions are recognized (proviso of Article 70(1)). Therefore, a part of co-litigants may withdraw a lawsuit or withdraw a lawsuit against a part of co-litigants, and in this case, the remaining part of the claim against the co-litigants for which a lawsuit has not been withdrawn is still subject to adjudication.

[3] It is not permissible for a person who intentionally committed a tort by taking advantage of the victim’s negligence to claim for the reduction of his/her liability on the ground of the victim’s negligence. However, this is because allowing a person who has such a ground to claim for offsetting negligence against the principle of good faith. As such, it does not mean that some of the tortfeasors have such ground and any other tortfeasor who does not have such ground cannot assert for offsetting negligence. In addition, even in cases where a broker assistant intentionally committed a tort against the victim, who is a party to a transaction, due to his/her occupational act, he/she only hires the broker assistant, and if the victim was responsible for such tort, if he/she was responsible for such negligence, the court shall take such factors into account in determining liability and amount of damages in accordance with the legal doctrine of offsetting negligence. Accordingly, if the broker assistant, who is a negligent tort, bears joint tort liability with the broker and joint tort liability with the broker assistant, he/she may reduce the amount of damages by taking into account the victim’s negligence, and if determining the amount of damages by the broker assistant who employed the broker assistant, the broker’s agent’s only may be less restrictive.

[4] The amount of comparative negligence in tort is set in consideration of the victim’s fault in determining the amount of compensation in line with the principle of equity or good faith. The scope of compensation is set in consideration of various circumstances, such as the perpetrator and the victim’s intentional or negligent intent, degree of fault, occurrence of illegal act, and expansion of damages. However, determination of fact-finding or ratio on the ground of comparative negligence falls under the exclusive authority of the fact-finding court unless it is deemed that it is considerably unreasonable in light of the principle of equity.

[1] Articles 67(1) and (2), and 70 of the Civil Procedure Act / [2] Articles 70(1) and 266 of the Civil Procedure Act / [3] Articles 396, 760, and 763 of the Civil Act, Article 30(1) of the Licensed Real Estate Agents Act / [4] Articles 396 and 763 of the Civil Act, Articles 202 and 432 of the Civil Procedure Act

[1] Supreme Court Decision 2009Da104960, 104977 Decided March 27, 2014 (Gong2014Sang, 911) / [3] Supreme Court Decision 2005Da32999 Decided June 14, 2007 (Gong2007Ha, 1045) Supreme Court Decision 2008Da22276 Decided June 12, 2008 / [4] Supreme Court Decision 98Da54397 Decided June 9, 200 (Gong200Ha, 1603)

Plaintiff (Attorney Lee Jae-hwan, Counsel for the plaintiff-appellant)

Korean Licensed Real Estate Agent Association and two others (Attorney Hy-seop et al., Counsel for the plaintiff-appellant)

Busan District Court Decision 2014Na41589 Decided September 23, 2015

All appeals are dismissed. The costs of appeal are assessed against the Defendants.

The grounds of appeal are examined.

1. Whether the judgment of the court below against the conjunctive Defendants violated the disposal right principle, party principle, etc.

A subjective and preliminary co-litigation is a form of litigation in which all co-litigants settle a dispute between themselves in the same legal relationship in a lump sum without contradiction (Article 70(2) of the Civil Procedure Act), and a judgment is rendered on the claims against all co-litigants (Article 70(2) of the Civil Procedure Act). A judgment is not allowed for only some co-litigants, or an additional judgment is rendered on behalf of the remaining parties. In addition, if one of the primary co-litigants or preliminary co-litigants files an appeal in a subjective and preliminary co-litigation, the final judgment on the claims against other co-litigants is also interrupted, and they are subject to adjudication by the appellate court (see Supreme Court Decision 2009Da104960, 104977, Mar. 27, 2014).

While the Civil Procedure Act requires the application of Articles 67 through 69, which are provisions for subjective and preliminary co-litigation with respect to indispensable co-litigation, the withdrawal of a lawsuit is recognized as an exception (proviso of Article 70(1)). Therefore, a part of the co-litigants may withdraw a lawsuit or withdraw a lawsuit against a part of the co-litigants. In such cases, the remainder of the claim against the co-litigants for which the lawsuit has not been withdrawn is still subject to adjudication.

In this case, the first instance court did not render a judgment as to the conjunctive defendant upon accepting the plaintiff's claim against the primary defendant 1. However, since the main defendant 1 appealed, the part of the claim against the defendants is also transferred to the appellate court, which is the appellate court, and becomes the subject of the appellate court's judgment. Even if a subjective and preliminary co-litigation relationship was terminated after the plaintiff withdraws the lawsuit against the primary defendant 1 at the lower court, the part of the claim against the defendants is still subject to the judgment of the lower court.

The lower court’s determination on the Plaintiff’s claim against the Defendants is justifiable in accordance with the aforementioned legal doctrine, and did not err by misapprehending the legal doctrine.

2. Whether it is unlawful to separately determine the scope of the Defendants’ liability

A. It is not permissible to assert that a person who intentionally committed a tort by taking advantage of the victim’s care is liable for the reduction of his/her own liability on the ground of the victim’s care. However, this is because allowing a person who has such reason to assert comparative negligence to some of the illegal persons is contrary to the principle of good faith. Thus, it does not mean that some of the illegal persons cannot assert comparative negligence even other illegal persons who have no such reason (see Supreme Court Decision 2005Da32999, Jun. 14, 2007). Further, even if a broker assistant was intentionally committed an illegal act against the victim who is a party to the tort, even if the broker assistant was employed, and if the victim was negligent in determining the liability and amount of damages in accordance with the principle of comparative negligence if the broker assistant was not responsible for the tort by taking into account the circumstances such as the broker assistant’s negligence, he/she is not liable for comparative negligence. Therefore, if the broker assistant who is an individual broker’s negligence, such as the broker assistant who employs the broker and the broker’s liability for comparative negligence, then may be considered the tort’s negligence.

B. The lower court, on the ground that Defendant 3, an intermediary assistant, committed a tort jointly with Nonparty 2 who had an intentional act against the tort, but constituted negligence and was negligent on the part of the Plaintiff, the victim, thereby restricting Defendant 3’s liability to 70%. Furthermore, Defendant 2 entered into a mutual aid agreement with Defendant 3’s employer practicing licensed real estate agent (hereinafter “corporate agent”) and Defendant Korea Licensed Real Estate Agent Association concluded a mutual aid agreement with Defendant 2, and limited Defendant 2’s liability to 60% in consideration of the circumstances, including that Defendant 2 employed brokerage assistants and did not participate in the tort. Meanwhile, when determining the amount of damages for which Nonparty 2 concluded a mutual aid agreement with Nonparty 3 and Nonparty 3, it limited liability to Nonparty 3’s licensed real estate agent and Defendant 90% in consideration of the status of Nonparty 3’s association.

In light of the aforementioned legal principles and records, the lower court did not err by misapprehending the legal doctrine as otherwise alleged in the grounds of appeal, which individually determines the scope of liability of Defendants 3, 2, and 3.

3. Whether the extent of the defendants' liability recognized by the court below is too heavy

Contributory negligence in tort is set in consideration of the victim’s fault in determining the amount of compensation in light of the principle of equity or good faith. The scope of compensation is set in consideration of various circumstances, such as the perpetrator and the victim’s intentional or negligent intent, degree of fault, occurrence of illegal act, and expansion of damages. However, fact-finding or determination of the rate of comparative negligence is a full authority of the fact-finding court unless it is deemed significantly unreasonable in light of the principle of equity (see, e.g., Supreme Court Decision 98Da54397, Jun. 9, 200).

In light of such legal principles and records, the lower court’s fact-finding or its determination on the grounds of comparative negligence is not deemed considerably unreasonable in light of the principle of equity, and thus, this part of the Defendants’ grounds of appeal cannot be accepted.

4. The remainder of the grounds of appeal by Defendant 2 and Defendant 3

Defendant 2 and Defendant 3 asserted that there was an error in selecting evidence and assessing their liability for damages, and that there was an error in the lower court’s judgment ordering the payment of damages for delay from the day after the duplicate of the complaint was served.

Even if examining the record, the lower court did not find facts beyond the bounds of the principle of free evaluation of evidence against logical and empirical rules, or did not err by misapprehending the legal principles as to the starting point of counting damages for delay, which affected the conclusion of the judgment. Therefore, this part of the grounds of appeal cannot

5. Conclusion

The Defendants’ appeals are dismissed in entirety as it is without merit, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Chang-suk (Presiding Justice)