The determination of the amount of litigation costs is determined by the court decision upon request of the parties if the amount of litigation costs is not determined in a trial that determines the burden of litigation costs, and if the applicant has agreed to waive all the right to request the determination of the amount of litigation costs and the right to claim in accordance with the final judgment, the right to claim the determination of the amount of litigation costs can not ultimately be exercised, so the application for the determination of the amount of litigation costs shall be deemed to have no benefit in the protection of rights (see Supreme Court Order

According to the records, on December 22, 2006 in the case of divorce between the petitioner and the re-appellant, "the applicant and the re-appellant shall be divorced; the re-appellant shall pay consolation money of 15 million won to the applicant; and at the same time he shall receive lease deposit of 12.5 million won from the applicant as division of property; and 1/4 of the costs of lawsuit shall be borne by the applicant; and 3/4 of the costs of lawsuit shall be borne by the re-appellant; however, although the re-appellant appealed appealed on November 16, 2007, the judgment of the court of first instance that "the costs of appeal shall be dismissed and the costs of appeal shall be borne by the re-appellant; 300,000 won shall be refunded to the non-appellant; 30,000 won shall be refunded to the non-appellant; and 1.5,000,000 won shall be refunded to the non-appellant; and 3.5,000,000 won shall be refunded by the above re-appellant.

According to this, at the time of the above conciliation, the applicant and the re-appellant appear to have tried to resolve all the remaining disputes between themselves, including the amount of consolation money finalized in the first instance judgment of the case such as the above divorce and the amount of division of property. However, the "damage that has already occurred in connection with the marital life" that did not claim in the future may include the amount of damages of the above consolation money of KRW 15 million caused by the failure of marital life. Thus, there is sufficient room to view the applicant as having waived the right to request the determination of the amount of litigation costs of the case due to the above conciliation.

Nevertheless, the court below held that it is difficult to recognize that the applicant has waived his/her right to apply for the determination of the amount of litigation costs based on the judgment of the court of first and second instances, such as divorce. This is erroneous in the misapprehension of legal principles on waiver of the right to claim the determination of the amount of litigation costs and benefit of protection of rights, or failing to exhaust all necessary deliberations, which affected the conclusion of the judgment.

Therefore, the order of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Si-hwan (Presiding Justice)