[소송비용담보제공][공2017하,1956]
Whether the plaintiff can file a claim for the provision of the cost of lawsuit in civil procedure (negative), and whether the same applies to the case where the plaintiff who won the lawsuit at the appellate court of the case becomes a defendant's appeal as the defendant's appeal period (affirmative)
Article 117(1) of the Civil Procedure Act provides, “Where a plaintiff deems it necessary to provide security for litigation costs, such as when he/she has no address, office, or place of business in the Republic of Korea, or when it is evident that his/her claim is groundless based on the written complaint, briefs, or other court records of trial, the court shall order the plaintiff to provide security for the litigation costs. The same shall also apply to cases where the security is insufficient.” Therefore, the right to apply for the provision of security for litigation costs only exists in the defendant, and the plaintiff cannot make the above application for the provision of security, and this is equally applied to the appellate procedure in the appellate trial of the merits, and thus, the right to apply for the provision of security for litigation costs to
Articles 117(1), 408, and 425 of the Civil Procedure Act
Supreme Court Order 2012Kaba15 Decided September 13, 2012 (Gong2012Ha, 1765)
E. E.S. A.S. Meabast Korea
IMD Co., Ltd.
The motion of this case is dismissed.
Article 117(1) of the Civil Procedure Act provides, “Where a plaintiff deems it necessary to provide security for litigation costs, such as when he/she has no address, office, or place of business in the Republic of Korea, or when it is evident that his/her claim is groundless based on the written complaint, preparatory documents, or other records of trial, the court shall order the plaintiff to provide security for the litigation costs. The same shall also apply in cases where the security is insufficient.” Therefore, the right to apply for the provision of security for litigation costs is only the defendant, and the plaintiff cannot make an application for the provision of security (see Supreme Court Order 2012Kaba15, Sept. 13, 2012). This is equally applicable to the appellate court in the appeal proceedings, and thus, the plaintiff does not recognize the right to apply for the provision of security for litigation costs to the plaintiff on the ground that
According to the records, the applicant was sentenced to a favorable judgment in the first instance court and the appellate court against the respondent as the plaintiff in the case of the Supreme Court No. 2017Da227837, which is the principal lawsuit, and the respondent appealed the appeal, and the Respondent filed a motion to provide the lawsuit of this case in this court.
Therefore, the motion of this case is unlawful since it was filed by the plaintiff of the main lawsuit for which the right to file a petition is not recognized. Therefore, it is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Park Poe-young (Presiding Justice)