[2] The case holding that in case where Gap et al. agreed to the effect that "three percent of the principal and interest so dismissed shall be paid as contingent fees, mediation, etc." when concluding a contract for delegation of litigation affairs concerning the main lawsuit seeking the name of the building and return of unjust enrichment equivalent to the rent, etc. against the tenant Byung et al., and Byung et al. agreed to the effect that "three percent of the principal and interest so dismissed shall be paid as contingent fees, and mediation, etc. shall also be deemed as winning" when concluding a contract for delegation of litigation affairs concerning the counterclaim against Gap et al., and that "the principal and interest so dismissed shall be deemed as winning" in the above lawsuit, where mediation was concluded with the purport that "the delivery of the building and the waiver of the other main lawsuit and the counterclaim shall be deemed as winning," Eul et al. may not seek contingent fees, but may seek contingent fees for the part of the counterclaim claim

1. Regarding ground of appeal No. 1

The plaintiffs' assertion in this part of the grounds of appeal is not legitimate grounds of appeal, since they asserted in the court of final appeal that did not claim in the court of final appeal.

2. Regarding ground of appeal No. 2

A. In principle, in a case where there is an agreement with the client as to the attorney’s fees for the handling of delegated affairs, an attorney-at-law who completed the delegated affairs may claim the agreed amount of remuneration, unless there are special circumstances. However, in a case where there are special circumstances to deem that the agreed amount of remuneration unfairly excessive and excessive and thus contravenes the principle of good faith and the principle of equity, the attorney-at-law who completed the delegated affairs may claim only the amount of remuneration within the extent that exceptionally deemed reasonable (see, e.g., Supreme Court Decisions 94Da57626, Apr. 25, 1995; 200Da50190, Apr. 12, 2002).

B. Review of the reasoning of the lower judgment and the evidence duly admitted reveals the following facts.

(1) In order to file a lawsuit against Nonparty 1 and 2 (hereinafter “Nonindicted 1, etc.”) who leased commercial buildings, etc. located in the building of Yong-Nam University Medical Center, the Defendant entered into a contract with the Plaintiffs on January 2009 for delegation of litigation affairs (hereinafter “the contract with the Plaintiffs”) in order to seek unjust enrichment equivalent to the rent and damages from illegal occupation. The contract with the Plaintiffs stated that the contract is “a contract with the principal claim”.

(2) As to the success fee of delegated affairs, Article 5 of the delegation contract of this lawsuit provides that “where the delegated affairs have been successful, the defendant shall pay 4 million won as a successful fee at the time of the winning of the request for extradition and the completion of execution thereof, and 3% of the principal and interest cited at the time of accepting the claim for money (excluding value-added tax),” and that “in the case of an agreement, conciliation, reconciliation, compulsory adjustment, recommendation for reconciliation, recommendation for reconciliation, or recognition of the claim, it shall be deemed as a winning.”

(3) On February 27, 2009, the Plaintiffs, as the Defendant’s attorney, filed a lawsuit against Nonparty 1, etc., Daegu District Court 2009Gahap2358, which changed the name of the building into KRW 877,915,500, among the claims for compensation on August 25, 2009.

(4) However, on July 1, 2009, Nonparty 1 filed a counterclaim against the Defendant for payment of KRW 1,861,215,125 with the Daegu District Court Decision 2009Gahap755 decided July 1, 200 as beneficial expenses and unjust enrichment.

(5) The Defendant entered into an additional contract on delegation of litigation affairs concerning the above counterclaim with the Plaintiffs (hereinafter “Counterclaim delegation contract”) and agreed that “in the event that the above counterclaim is successful, 3% of the principal and interest (excluding value-added tax) shall be paid as contingent fees if the counterclaim is successful,” and that “in the case of an agreement, adjustment, compromise, compulsory adjustment, recommendation of reconciliation, recommendation of reconciliation, and withdrawal of counterclaim, it shall be deemed successful.”

(6) On November 9, 2009, the above lawsuit: (a) Nonparty 1, etc. delivered all the building occupied to the Defendant by December 31, 2009; (b) the Defendant renounced the remainder of the main claim against Nonparty 1, etc.; and (c) Nonparty 1 constituted a conciliation to waive the counterclaim claim against the Defendant (hereinafter “instant conciliation”).

C. For the reasons indicated in its holding, the lower court determined that: (a) with respect to the portion of the claim for money, the economic benefits the Defendant substantially gained by the conciliation are 983,29,625 won (amount of the claim for counterclaim, i.e., the amount obtained by deducting the amount of the claim for money from the amount of the claim for counterclaim, i.e. the amount of the claim for counterclaim, e., the amount of the claim for money claimed - the amount of money claimed 87,915,50 won (the amount of the claim for counterclaim - the amount of money claimed 87,915,50 won), the amount of remuneration for the portion of the claim for money was calculated by multiplying the amount of the claim by the agreed amount of the value-added tax; and (b) the amount of contingent remuneration for the portion of the claim for money is 32,484,986,986,396,500 won (the amount of the claim for counterclaim ; and

D. In light of the aforementioned legal principles and the above facts, the part of the court below's determination that the scope of substantial winning by considering the economic benefits, etc. that the delegating person actually gained through mediation is valid as an agreement to pay the contingent fee. However, the part of the judgment on the contingent fee of the monetary claim is difficult to accept for the following reasons.

(1) The Plaintiffs and the Defendant agreed to pay 3% of the cited principal and interest as the contingent fee in the case of acceptance of the claim for money in the principal delegation contract, and agreed to pay 3% of the principal and interest that the counterclaim dismissed as the contingent fee when concluding the counterclaim delegation contract.

In light of the circumstances that the Plaintiffs and the Defendant set the amount of contingent fees on the basis of the principal and interest on which the principal and interest on which the claim for money in the principal lawsuit is accepted, and the contract in the delegation contract in the principal lawsuit clearly stated that the subject matter of the principal and the counterclaim is identical, barring special circumstances, such as that the subject matter of the principal and the counterclaim is identical, the economic benefits that the delegating person gains through the conciliation in the instant case and the scope of substantial winning of the principal and the counterclaim shall be divided by the principal and the counterclaim in principle.

As a result of the mediation of this case, the same result as the losing part of the principal claim against the waiver of the plaintiffs. On the other hand, with respect to the counterclaim claim, the waiver by the defendant would have the same economic result as the winning part of the whole lawsuit by the plaintiffs.

Therefore, according to the purport of each contingent fee and each contract to win the lawsuit, it is not possible to seek the contingent fee with respect to the part of the principal claim. However, with respect to the part of the counterclaim, it is reasonable to deem that the amount of KRW 55,836,453 equivalent to 3% of the amount of the counterclaim claim and the value-added tax of KRW 5,583,645 can be claimed as the contingent fee.

(2) On the contrary, as stated in the judgment of the court below, if the difference between the principal claim and the counterclaim claim amount is deemed as substantial economic benefits and the successful remuneration amount is determined based thereon, the contingent remuneration amount would be reduced more than the case where the lawsuit is delegated only with respect to the counterclaim, and the amount equivalent to the contingent remuneration amount of the principal lawsuit would be deducted from the contingent remuneration amount due to the winning of the principal lawsuit on the ground of the losing of the principal lawsuit, and it would result in a deduction of the amount equivalent to the contingent remuneration amount of the principal lawsuit from the contingent remuneration amount due to the winning of the counterclaim, and thus, it shall not be permitted unless there

The court below held that a counterclaim claim is a tenant's claim for beneficial expenses, etc., which is generally accepted only for the remaining part of a lessor's claim for money deduction or offset, and that the lessor renounced the part of the claim for money in the principal lawsuit instead of receiving a waiver of the counterclaim under the conciliation of this case, and that it is in a substantial relationship with the payment. However, since the amount of unjust enrichment and unjust enrichment claimed as a counterclaim differs in the subject matter of lawsuit, the economic benefits for the failure of the lawsuit cannot be deemed to overlap, and the waiver of the part of the claim for money in the principal lawsuit is recognized as a set-off or as a consideration for the waiver of the counterclaim, on the grounds that the part of the claim for money in the principal lawsuit is reduced or rejected as well as the part of the claim for money in the principal lawsuit, and therefore, it is difficult to form the grounds for the judgment of the court below as above.

(3) In addition, even if there are special circumstances to deem the amount of contingent fees calculated by dividing the principal lawsuit and counterclaims unfairly excessive and contrary to the principle of good faith and equity, the amount of such contingent fees shall be reduced to a reasonable amount of remuneration, reflecting the circumstances in accordance with the aforementioned legal doctrine, and the amount of the principal lawsuit and counterclaims, which are substantially gained by the instant adjustment at the stage of calculating the contingent fees, shall not be reduced to the amount of economic profit per counterclaim itself.

E. Therefore, the court below erred by misapprehending the legal principles as to the contingent fee agreements and disposal documents in the delegation of litigation, which affected the conclusion of the judgment, by misapprehending the legal principles as to each of the above contingent fees and the winning contract, or by making an erroneous determination as to the calculation of contingent fees. The ground of appeal pointing this out is with merit.

3. Conclusion

Therefore, the judgment 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 Shin Young-chul (Presiding Justice)