(영문) 서울남부지방법원 2016. 12. 12.자 2016카담1480 결정[소송비용담보제공][미간행]
Jungdong Industry Co., Ltd.
Respondent
The motion of this case is dismissed.
A. When the plaintiff did not have a domicile, office, or office in the Republic of Korea, or when it is evident that a claim is groundless based on the complaint, preparatory documents, or other records of trial, the defendant may file an application with the court to order the plaintiff to provide a security for the costs of lawsuit (Article 117(1) of the Civil Procedure Act). However, if the defendant testified on the merits with the court with the knowledge that the above grounds for the provision of security exist, the above right of the defendant is lost (Article 118 of the Civil Procedure Act). Since the effect of the loss is limited to the higher court where the lawsuit is pending as well as the first instance court (see Supreme Court Order 89Ka78, Oct. 16, 1989). The applicant's application for the provision of security in the appellate court is unlawful in principle (see Supreme Court Order 89Ka78, Oct. 16, 1989). An application for the provision of security in the appellate court may only be made where the applicant could not apply for the provision of security without negligence or where a new cause for the provision occurred in the appellate court (see Decision 5 Nov. 15, 28, 2015
B. In light of the records, the applicant had been aware of the grounds for the provision of the litigation costs of this case at the first instance court of the case on the merits (Seoul Southern District Court Decision 2015Da128279). Since the applicant had made a pleading on the merits on the date of pleading at the first instance court, the applicant lost his/her right to apply for the provision of lawsuit costs. In addition, the materials submitted by the applicant are insufficient to recognize that the applicant could not apply for the provision of security without fault at the first instance court, or that there was a new cause for the provision of security at the trial, and there is no other evidence to prove otherwise.
C. Therefore, since the applicant’s request of this case made in the appellate trial is unlawful, it is decided as per Disposition by the assent of all participating Justices.
Judges Choi Jong-chul (Presiding Judge)