(영문) 인천지방법원 2019.07.12 2018나73204

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(영문) 인천지방법원 2019.07.12 2018나73204

채무부존재확인

Text

1. Of the principal lawsuit of the Plaintiff (Counterclaim Defendant), the part demanding confirmation of the non-existence of the obligation to pay the penalty added by this court.

Reasons

1. The reasoning of the judgment of the court of first instance cited by the court of first instance is as follows: (a) an ex officio determination as to the part of the claim for confirmation of non-existence of the obligation to pay penalty added by the court of first instance is added to the part of the claim for confirmation of non-existence of the obligation to pay penalty added by the plaintiff; and (b) except to a dismissal or addition as stated in paragraph (3) below,

[However, the part of the claim for confirmation of non-existence of the obligation to return an intermediate payment excluded from the scope of the judgment of this court (excluding the part concerning the claim for confirmation of non-existence of the obligation to pay penalty among the grounds of the judgment of the first instance). 2. We examine ex officio the part concerning the claim for confirmation of non-existence of the obligation to pay penalty added

On the other hand, while a lawsuit seeking confirmation of the absence of the obligation against the debtor is pending, there is no benefit in the lawsuit (see, e.g., Supreme Court Decision 2001Da22246, Jul. 24, 2001). In this case, the defendant's claim for a penalty of KRW 23,80,000 has already been included in the claim for a counterclaim, and the plaintiff may argue that the defendant does not have the right to claim a penalty by seeking a ruling dismissing the counterclaim, and therefore, there is no benefit in seeking confirmation that there is no obligation to pay the penalty against the defendant as a separate principal lawsuit.

Therefore, the part of the Plaintiff’s claim for confirmation of non-existence of the additional penalty is unlawful as there is no benefit of confirmation.

3. Parts used or added;

A. Of the reasoning of the judgment of the court of first instance, each “F Nos. 5, 10, and 18” of the judgment of the court of first instance among the basic facts in paragraph (1) of the same Article shall be deemed to be “A”, and “No. 12” shall be added to the evidence of evidence of first instance recognized No. 4. 17.

2. Part 6 of the judgment of the court of first instance, "On the other hand," from the next to the next 16th is as follows.

참조조문

-민사소송법 제420조

참조판례

-대법원 2001. 7. 24. 선고 2001다22246 판결

유사 판례

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