In light of the validity of extinctive prescription and the method of evidence anticipated at the time the dispute arises, the nature of the procedure to determine the amount of litigation costs and the progress thereof, etc., in principle, whether the extinctive prescription of a right to claim reimbursement of litigation costs is completed shall be deliberated and determined through pleadings in the procedure of raising an objection rather than the procedure to determine the amount of litigation costs. However, in exceptional cases where there are special circumstances, such as where the application for determination of the amount of litigation costs was filed ten years after the expiration of the extinctive prescription period of the right to claim reimbursement of litigation costs based on the date on which the application was submitted, and where the other party does not challenge the expiration of the extinctive prescription period, it is possible to examine and determine whether the extinctive prescription period has been completed in the procedure to determine the amount of litigation costs in relation to the right to claim reimbursement of litigation costs in the lawsuit which is to apply for determination of the amount of litigation costs, on the grounds that Party A is arguing on the basis of the starting point of extinctive prescription, approval of obligations, abuse of rights, etc.

2. Costs of appeal shall be borne by the respondent.

Since the claimant's right to claim reimbursement of litigation costs against the respondent is extinguished due to the lapse of prescription because it was not exercised for ten years from the date of the final and conclusive judgment that determined the burden of litigation costs [the Seoul Central District Court Decision 2004Da55686 decided) and the respondent did not exercise it for ten years from the date of the final and conclusive judgment, the decision of the court of first instance that determined the amount of litigation costs to be repaid by the respondent

2. Determination

A. Relevant legal principles

In a case where the obligation to reimburse the cost of lawsuit becomes final and conclusive by a trial, the amount of the cost of lawsuit can only be determined in the procedure for determining the amount of the cost of lawsuit, and the existence or absence of the obligation to reimburse itself cannot be deliberated and determined (see, e.g., Supreme Court Order 2000Ma7028, Aug. 13, 2001; Supreme Court Order 200Ma5257, Sept. 23, 2002). Therefore, the other party can only present an explanation and presentation of an opinion as to whether the expense items submitted by the applicant belong to the cost of lawsuit and the amount thereof, and even if the substantive right to the cost of lawsuit is extinguished by repayment, offset, compromise, etc. conducted outside the procedure for determining the cost of lawsuit, such cause may be a ground for filing a lawsuit seeking the objection at the execution stage of determining the amount of the cost of lawsuit, but it shall not be examined and determined in the procedure for determining the cost of lawsuit (see Supreme Court Order 2008Ma4828, May 16, 16).

Inasmuch as the completion of extinctive prescription is one of the grounds for the extinguishment of a claim, barring any special circumstance, whether the substantive right to the cost of lawsuit has expired due to the completion of extinctive prescription ought to be deemed identical as above. In a case where a party contests the existence of substantive right by asserting the commencement date of extinctive prescription, the existence of grounds for interruption, the violation of the principle of trust and good faith, etc., the examination of witness, appraisal, and inquiry into facts pursuant to the Civil Procedure Act, but in a lawsuit amount confirmation procedure based on vindication, evidence that can be promptly examined ought to be based on the evidence that can be examined during the procedure for immediate examination (Article 299(1) of the Civil Procedure Act). Therefore, in full view of the validity of extinctive prescription and the method of evidence anticipated at the time of dispute, the nature of the procedure for determination of the cost of lawsuit and the process thereof, etc., whether the extinctive prescription of a

However, in exceptional cases where an application for the determination of the amount of litigation costs was filed ten (10) years after the date on which the application was filed, the extinctive prescription period for the claim for reimbursement of litigation costs can be sufficiently confirmed only with the date of the above application and the written judgment on the burden of litigation costs, and where special circumstances exist, such as where the other party does not dispute that the extinctive prescription period has expired, it may examine and determine whether the extinctive prescription period has been completed in the procedure for the determination of the amount of litigation costs in relation to whether there is a benefit in the protection of rights in the lawsuit, which is to apply for the determination of the amount of litigation costs, and where it is not possible to exercise the right to claim reimbursement of litigation costs ultimately, it is desirable to determine the amount of litigation costs, and to dismiss the application for the determination of the

B. Ascertainment of the grounds for appeal of this case and propriety of the first instance decision

According to the records, the Respondent's ground for appeal on the completion of extinctive prescription against the Respondent's claim for reimbursement of litigation costs is disputed on the ground of the starting point of the extinctive prescription, the recognition of debt and the abuse of rights, etc. In light of the above legal principles, insofar as the Respondent's obligation to reimburse litigation costs against the Respondent has already been established, the Respondent may calculate the amount of litigation costs that the Respondent should reimburse to the applicant based on this principle in the procedure for determining the amount of litigation costs in this case, and may not separately deliberate and decide on whether the extinctive prescription of the Respondent's claim for reimbursement of litigation costs has expired (excluding the Respondent's assertion of extinction of the claim right due to the expiration of extinctive prescription by filing a lawsuit of objection at the stage of execution of the final decision on the amount of litigation costs). Therefore

3. Conclusion

The appeal of this case is dismissed as it is without merit.

Judges Kang Young-chul (Presiding Judge)