1. In a case where a lawsuit is terminated without a trial, in order for the party to receive a reimbursement of litigation costs, the party shall apply for a trial on the burden of litigation costs to the court with pending proceedings at the time the lawsuit is terminated in accordance with Article 114(1) of the Civil Procedure Act, and this cannot be the method of applying for a final determination of litigation costs to the court of first instance (see Supreme Court Order 90Ma1003, Nov. 30, 1992).

In preparation for a case where a principal claim is accepted, a preliminary counterclaim in the form of seeking a trial on a conditional counterclaim becomes final and conclusive and conclusive, the continuation of the lawsuit is retroactively extinguished due to the fulfillment of the conditions of rescission. Such preliminary counterclaim falls under a case where a lawsuit is not completed without resorting to a trial, and thus, the court with pending the lawsuit does not need to determine the costs of the counterclaim in the judgment on the principal claim, and no effect exists even if it is judged on it (see Supreme Court Decision 2006Da19061, 19078, Jun. 29, 2006, etc.).

Therefore, if a preliminary counterclaim lapses retroactively, either party can obtain reimbursement of the costs of the preliminary counterclaim only through a trial on bearing the costs of the lawsuit and the final decision procedure, and the costs of the lawsuit shall be borne by the defendant, as in the case of withdrawal of the lawsuit, in principle, equivalent to the losing party. In addition, where the defendant who filed the preliminary counterclaim files an application for confirmation of the costs of the lawsuit in relation to the principal lawsuit, the court is sufficient to determine the costs of the lawsuit only with respect to the costs of the principal lawsuit, and in this case, the value of the subject matter of the lawsuit, which serves as the basis for attorney fees, included in the costs of the lawsuit pursuant to Article 3(1) of the Rules on

2. The record reveals the following facts.

A. On February 11, 2015, the Respondent filed a lawsuit against the Re-Appellant seeking cancellation of ownership transfer registration on the ground that the sales contract was canceled. The Re-Appellant filed a preliminary counterclaim against the Respondent for seeking return of the purchase price already paid in preparation for the case where the principal claim by the Respondent is accepted as the court No. 2014Gahap6333, which dismissed the respondent’s principal claim, and the court did not render any judgment on the Re-Appellant’s counterclaim claim while dismissing the respondent’s principal claim by the Respondent.

B. On May 13, 2016, the respondent filed an appeal with Seoul High Court 2015Na7611 (main lawsuit), 2015Na7628 (Counterclaim), and added the conjunctive claim seeking compensation for damages due to nonperformance at the appellate court. However, on May 13, 2016, the above court dismissed both the respondent’s appeal and the conjunctive claim added at the appellate court, and the judgment became final and conclusive as it is.

C. On August 23, 2016, the re-appellant filed an application with the first instance court for the determination of the amount of litigation costs in this case in relation to the lawsuit on the merits. On February 15, 2017, the first instance court decided that the amount of litigation costs that the respondent should reimburse to the re-appellant is KRW 10,121,816, the respondent appealed and filed an immediate appeal on February 24, 2017.

D. On December 8, 2017, the lower court accepted the Respondent’s immediate appeal, and determined that the Respondent’s conjunctive counterclaim’s costs were KRW 1,866,28, which the Respondent would have to pay to the Re-Appellant through a separate trial for costs of lawsuit on the ground that the Re-Appellant’s conjunctive counterclaim’s costs of lawsuit are determined as KRW 1,866,28, on the grounds that the Respondent’s costs of lawsuit should be determined through a separate trial for costs of lawsuit. At the time, the lower court calculated the attorney’s fees by aggregating both the principal lawsuit and the conjunctive counterclaim’s costs of lawsuit on the grounds that the Respondent’s conjunctive counterclaim’s costs of lawsuit were to be paid to the Re-Appellant’s costs of lawsuit, and determined that the Respondent’s fees were to be paid to the Respondent’

3. Examining these facts in light of the legal principles as seen earlier, the lower court was justifiable to have determined that the lower court could not examine the costs of the preliminary counterclaim in the determination procedure for the costs of the lawsuit. However, in calculating the attorney’s fees to be included in the costs of the lawsuit, the lower court erred by summing up the lawsuit that constitutes the basis for calculating the fees of the principal lawsuit and the preliminary counterclaim in the lawsuit. Rather, the lower court should have determined, based only on the principal lawsuit, the lower court calculated the attorney’s fees to be included in the costs of the lawsuit on the basis of the principal lawsuit, and then determined, as the attorney’s fees

In this case, where the portion of the attorney's fees paid by the re-appellant is divided into the portion of the principal lawsuit and that of the preliminary counterclaim, the attorney's fees shall be calculated only on the basis of the portion incurred by the principal lawsuit, and where it is impossible to distinguish it, each of the principal lawsuit and the preliminary counterclaim shall be determined by dividing it according to the ratio.

4. Nevertheless, the lower court calculated the lawsuit, which serves as the basis for the attorney’s fees, to be included in the litigation costs in the determination procedure of the amount of litigation costs in this case, and calculated the total of the principal lawsuit and the preliminary counterclaims. In so doing, the lower court erred by misapprehending the legal doctrine on the burden of litigation costs in the event the preliminary counterclaim lapses retroactively, thereby adversely affecting the conclusion of the judgment. The grounds for reappeal

5. Therefore, without further proceeding to decide on the remaining grounds of 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 Park Sang-ok (Presiding Justice)