[소송비용담보제공][집44(1)민,489;공1996.7.1.(13),1787]
[1] The meaning of "where security under Article 107 (1) of the Civil Procedure Act is insufficient" and the method of determining whether security is insufficient
[2] The case holding that the defendant may apply again for the provision of security in case where the plaintiff has filed an appeal against the plaintiff who provided the amount equivalent to attorney fees as security upon the defendant's application
[1] "Where security" as stipulated in Article 107 (1) of the Civil Procedure Act refers to the case where a security offered following the progress of a lawsuit is not sufficient, such as where additional litigation costs are expected to be incurred due to the filing of an appeal or the expansion of a lawsuit, etc., and only where a person is aware of such cause, he/she shall lose his/her right to apply for a security pursuant to Article 108 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. It shall be presumed that the defendant should not have any shortage of
[2] The case holding that the defendant's application for security made before the commencement of pleading is lawful, on the grounds that the court of first instance, upon the defendant's application, made a decision to provide security of KRW 13,00,000, which is the amount equivalent to the attorney's fees for the first instance court under the Regulation on the Calculation of Litigation Costs, and that the plaintiff filed an appeal against the first instance court, and the defendant again filed an application for security, and that the security offered by the plaintiff was not sufficient as a result of the process of the lawsuit, and the defendant knew that the security offered by the plaintiff was insufficient only at this time
[1] Articles 107(1) and 108 of the Civil Procedure Act / [2] Articles 107(1) and 108 of the Civil Procedure Act
[2] Supreme Court Order 89Ka78 dated October 16, 1989 (Gong1990, 444)
Linaina Slin Slin Island (Attorneys Choi Su-ro et al., Counsel for the plaintiff-appellant)
Seoul High Court Order 96Ka94 dated February 5, 1996
The reappeal is dismissed.
The grounds of reappeal are examined.
Article 107 (1) of the Civil Procedure Act provides that "if the plaintiff has no address, office, or place of business in the Republic of Korea, the court shall order the plaintiff to provide a security for the costs of lawsuit at the request of the defendant." Article 108 of the same Act provides that "if the defendant has known that there is a reason to provide a security, and the defendant has made a statement in the preparation procedure with respect to the merits, he/she shall not apply for a security." The lack of security under Article 107 (1) of the same Act refers to the case where the security provided is not sufficient due to the progress of the lawsuit, such as where it is anticipated that the cost of the lawsuit will be additionally incurred due to the lack of security, the expansion of the lawsuit, etc.
According to the records, the court of first instance, upon the defendant's application, decided to offer the above amount of KRW 13,00,000, which is equivalent to the attorney's fees under the Regulation on the Calculation of Litigation Costs for Attorneys-at-Law, was conducted in the first instance court after the plaintiff deposited the above amount, and the plaintiff who lost in the first instance court filed an appeal, and the defendant again filed an application for the provision of this case. In such cases, the plaintiff did not have sufficient security provided by the plaintiff as a result of the process of the lawsuit by filing an appeal, and the defendant knew that the security provided by the plaintiff is insufficient. Thus, the defendant's application for the provision of this case is legitimate before the appellate court commences the pleading, and the defendant's response to the first instance court's appeal cannot be deemed to have lost the right to apply for the provision of this case. Accordingly, the court below's acceptance of the defendant's application for the provision of this case is justifiable, and there is no error in the misapprehension of legal principles as to
Therefore, the reappeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices.
Justices Park Jong-chul (Presiding Justice)