[소송비용담보제공][미간행]
[1] Whether the effect of loss of the right to request the provision of litigation costs under Article 118 of the Civil Procedure Act is against the higher court (affirmative)
[2] The case holding that an application for the provision of lawsuit security filed against the appellate court by the defendant who testified on the merits on the date for pleading of the first instance court even though he knew that there was a ground for
[1] Articles 117(1) and 118 of the Civil Procedure Act / [2] Articles 117(1) and 118 of the Civil Procedure Act
[1] Supreme Court Order 89Ka78 dated October 16, 1989 (Gong1990, 444) Supreme Court Order 2002Kadam20 dated August 14, 2002 (Gong2002Ha, 2275)
Applicant
Respondent
Seoul High Court Order 2008Kadam495 dated March 27, 2008
The order of the court below is reversed, and the case is remanded to Seoul High Court.
1. According to the records, the respondent filed a lawsuit against the applicant on January 4, 2007 against Seoul Eastern District Court 2007Kadan638 Decided July 24, 2007, but the Seoul High Court ruled against the applicant on July 24, 2007 and appealed as Seoul High Court 2007Na78762, and the applicant filed an application for the provision of the lawsuit in this case on the ground that the respondent did not have an address in the Republic of Korea, etc. at the appellate court, and accordingly, the court below rendered a decision that ordered the respondent to provide the lawsuit in this case on March 27, 2008.
2. However, the decision of the court below is not acceptable for the following reasons.
According to Articles 117(1) and 118 of the Civil Procedure Act, in the event that the plaintiff has no address, office, or place of business in the Republic of Korea, the defendant may apply to the court for ordering the plaintiff to provide a security for the costs of lawsuit, and if the defendant has testified on the merits with the knowledge of the grounds for the above provision of security, the defendant's above right to apply is lost. Since the effect of the loss is limited not only to the first instance court but also to the higher court where the lawsuit is pending, the defendant's application for the provision of security in the appellate court is unlawful (see Supreme Court Order 89Ka78, Oct. 16,
According to the records, since only the respondent's address of the United States is written in the above complaint, the respondent was aware that he had no address, office, or place of business in Korea on January 18, 2007, on which he received the above complaint, and thereafter, the applicant can be aware of the fact that he made a pleading on the merits on April 17, 2007, which is the date of the first instance court's first instance court's date of pleading, and thus the applicant's right to request the provision of this case has been lost. And since the effect of loss of the right to request the provision of this case is limited to the higher court in which the lawsuit is pending, the application of this case by the applicant is unlawful.
Nevertheless, the court below ordered the respondent to provide a security upon the application of this case. Thus, the court below erred by misapprehending the legal principles as to the right to apply for the provision of litigation costs, and it is clear that such illegality has influenced the judgment.
3. Therefore, without examining the remaining grounds for reappeal, 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 Jeon Soo-ahn (Presiding Justice)