Whether it is possible to order the plaintiff who did not appeal to pay consolation money more than the judgment of the court of first instance (negative)

Since a claim for damages on property and a claim for consolation money are separate claims that are not identical to the subject matter of lawsuit, it is not possible to order the plaintiff who did not appeal against the judgment of the court of first instance to pay consolation money more than

Article 385 of the Civil Procedure Act

Supreme Court Decision 80Da1192 Delivered on July 8, 1980

Plaintiff 1 and three others, Attorneys Noh Byung-jin et al., Counsel for the plaintiff-appellant

Attorney Lee In-bok, Counsel for defendant-appellant

Gwangju High Court Decision 88Na3818 delivered on January 27, 1989

The part of the judgment below against the defendant regarding consolation money shall be reversed, and that part of the case shall be remanded to the Gwangju High Court.

The defendant's remaining appeals are dismissed.

The costs of appeal against the dismissed portion shall be assessed against the defendant.

We examine the grounds of appeal.

Since a claim for damages on property and a claim for consolation money are separate claims that are not identical in the subject matter of lawsuit, it is not possible to order the plaintiff who did not appeal against the judgment of the court of first instance to pay consolation money more than the judgment of the court of first instance (see Supreme Court Decision 80Da1192, Jul. 8, 1980). However, considering the records of the court of first instance and the judgment of the court of first instance together with the records, the court of first instance recognized the deceased as consolation money for the deceased and calculated the amount of damages against the plaintiffs according to the plaintiffs' inherited portion, and then the plaintiffs did not appeal against the plaintiff and only the defendant did not appeal against the plaintiff, and eventually the judgment of the court of first instance affirmed only the part against the defendant while the judgment of the court of first instance reached the judgment of the court of first instance, it is clear that the court below recognized the consolation money for the deceased as consolation money for the plaintiff and calculated the

Ultimately, the judgment of the court below shall not be deemed to have affected the conclusion of the judgment by misunderstanding the legal principles as to the claim for damages on property, the subject matter of the claim for consolation money, and the scope of the judgment of the court of first instance.

The argument pointing this out is with merit.

The assertion is that even though the court below did not appeal against the above plaintiffs as consolation money for plaintiffs 2, 3, and 4, even though the court of first instance recognized 500,000 won as consolation money for plaintiffs 2, 3, and 4, the court below recognized as 1,00,000 won for each of the above plaintiffs. However, according to the court of first instance and the court of first instance, it is clear that the court of first instance and the court below recognized consolation money for the above plaintiffs as 1,00,000 won for each of the above plaintiffs. Thus, it

In addition, in the appellate court, the degree of comparative negligence of the deceased may be newly determined differently from the first instance court, so it cannot be caused by the lower court’s comparative negligence ratio.

Therefore, the part of the judgment of the court below against the defendant regarding the claim for consolation money is reversed, and that part of the case is remanded to the court below, and the defendant's remaining appeal is dismissed. The costs of appeal dismissed are assessed against the defendant. It is so decided as per Disposition by

Justices Song Man-man (Presiding Justice)