[소송비용추가담보제공][공2002.10.15.(164),2275]
[1] The meaning of "where security falls short of security" under Article 117 (1) of the Civil Procedure Act and the method of determining whether security falls short of security
[2] The case holding that the application for the provision of additional security for litigation costs filed in the final appeal against the defendant presumed to have failed to secure the costs of lawsuit at the time of filing an appeal is unlawful after the defendant respondeded to the
[1] "Where security" as stipulated in Article 117 (1) of the Civil Procedure Act refers to cases where a security offered following the progress of a lawsuit is not sufficient, such as the case where a lawsuit is expected to be additionally required due to the filing of an appeal or the expansion of a lawsuit, etc., and where a person is aware of such cause, he/she shall lose his/her right to apply for a security under Article 118 of the same Act, and whether the security is insufficient or not shall be determined in comparison with the total amount of the litigation cost paid and the amount of the security, and it shall be presumed that the defendant should not have
[2] The case holding that an application for additional provision of security filed by the defendant against the appellate court is unlawful, since the defendant presumed to have known that the security for the costs of lawsuit was not secured at the time of filing the appeal had been applied for the above additional provision of security before the appellate trial commenced, and the defendant's right to apply for additional provision of security was lost, and since the effect of loss of security is limited not only to the appellate court but also to the higher court in which the lawsuit is pending.
[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 96Ma299 dated May 9, 1996 (Gong1996Ha, 1787) / [2] Supreme Court Order 89Ka78 decided Oct. 16, 1989 (Gong1990, 444)
Industrial Bank of Korea (Attorney Hy-won et al., Counsel for defendant-appellant)
Large-Control LLC
The motion of this case is dismissed.
"Where security" under Article 117 (1) of the Civil Procedure Act refers to cases where a security provided following the progress of a lawsuit is not sufficient, such as where the additional cost of lawsuit is expected to be incurred due to the filing of an appeal or the expansion of a lawsuit, etc., and where a person knowingly complies with such cause, he/she shall lose his/her right to apply for a security pursuant to Article 118 of the same Act, and whether the security is insufficient or not shall be determined in comparison with the total amount of the cost of lawsuit paid and the amount of the security, and it shall be presumed that the defendant would not have any shortage of security when the former exceeds the latter (see Supreme Court Order 96Ma299, May 9, 199
According to the records, upon the defendant's application, the first instance court decided to offer 7,90,00 won as security, and the first instance court was affirmed after the plaintiff deposited the above amount and sentenced to the judgment in favor of the plaintiff, the appellate court revoked the first instance judgment and sentenced to the dismissal of the plaintiff's claim. The defendant filed the appeal of this case on the ground that the plaintiff's lack of security against the costs of lawsuit in this court upon the plaintiff's filing an appeal, and 3,561,715 won, stamp 1,896,40 won, delivery fee of 45,200 won, which is equivalent to the attorney's fees under the Rules on the Calculation of Litigation Costs for Attorneys' Fees, and 1,503,315 won, which is the aggregate of the above amount of 8,500 won, and 3,561,715 won, which is equivalent to the above attorney's fees at the appellate court before the defendant's filing of the appeal, 305,500 won, 150
Therefore, the defendant's motion of this case is dismissed, and it is so decided as per Disposition by the assent of all participating Justices.
Justices Lee Jae-sik (Presiding Justice)