[구상금][공1997.1.15.(26),156]
[1] In a case where only one of the joint tortfeasor has filed a lawsuit and jointly exempted, whether the litigation costs incurred in relation to the lawsuit and the reimbursement of the litigation costs paid to the victim are included in the scope of the right of indemnification (affirmative)
[2] In a case where only one of the joint tortfeasors has filed a lawsuit and the other joint tortfeasor has participated in the appeal court, whether the other joint tortfeasor has the right to demand reimbursement of the cost of lawsuit incurred after the appellate court (negative)
[1] One of the joint tortfeasors can claim the amount of money recognized in the judgment as a joint tortfeasor's liability by paying damages as a result of the lawsuit filed by the victim for damages, unless there are special circumstances such as unfair response, as well as the amount equivalent to the percentage of the other joint tortfeasor's liability, legal interest after the date of joint immunity, and other expenses that cannot be avoided. The other expenses that cannot be avoided in this context include not only the amount paid by the joint tortfeasor to the victim, but also the expenses paid in the course of the above lawsuit. From among the attorney's fees, the amount of money recognized as reasonable and reasonable in consideration of various circumstances such as the criteria for remuneration under the Rules on the Calculation of Litigation Costs by the Attorney's Fees, the rules, the rules of the affiliated attorney's meeting, the amount of the subject matter of lawsuit, the difficulty of the case, the progress of the lawsuit, and the result of the judgment, etc. can be claimed as expenses and other damages.
[2] In a case where only one of the joint tortfeasors who participated in a lawsuit but the other joint tortfeasor participated and participated in the lawsuit only when the appeal was filed in the appellate court, the costs of the lawsuit that the party who participated in the lawsuit after the appellate court participated in the lawsuit are for the purpose of defending his/her rights, and cannot be viewed as the costs for joint immunity. Therefore, it is not allowed to claim for reimbursement against the joint tortfeasor who participated in the lawsuit. However, the costs of lawsuit that the court participated in the lawsuit before the participation in the lawsuit were paid to the other joint tortfeasor, unless there are special circumstances, such as that the party's response is unfair, can be viewed as the costs
[1] Articles 425 and 760 of the Civil Act / [2] Articles 425 and 760 of the Civil Act
[1] [2] Supreme Court Decision 94Da48257 delivered on October 12, 1995 (Gong1995Ha, 3726) / [1] Supreme Court Decision 78Da1423 delivered on November 14, 1978 (Gong1979, 11608)
Japanese Fire and Marine Insurance Co., Ltd. (Law Firm Gyeong-il General Law Office, Attorney Noh Dong-young, Counsel for defendant-appellant)
[Defendant-Appellee] Defendant 1 and 3 others (Attorney Kim Jong-sik, Counsel for defendant-appellee
Daegu District Court Decision 94Na4828 delivered on December 2, 1994
The part of the lower judgment against the Plaintiff regarding the claim for reimbursement of legal costs, including attorney fees, shall be reversed, and that part of the case shall be remanded to the Daegu District Court Panel Division. The remainder of the Plaintiff’s appeal and the Defendant’s appeal shall be dismissed, respectively. The costs of appeal against this part shall
We examine the grounds of appeal.
1. The grounds of appeal No. 1 by the Plaintiff’s attorney and the grounds of appeal by the Defendant’s attorney are also examined.
Upon examining the evidence established by the court below according to the records, the court below's fact-finding on the causes, circumstances, etc. of the death or injury of the bus passengers due to the collision between the accident bus and the car of the defendant driving, which was driven by the non-party 1, the non-party 2, the non-party 2, the non-party 3, the non-party 2, the non-party 3, the non-party 2, the non-party 2, the non-party 2, the non-party 3, the non-party 2, the non-party 3, the non-party 2, the non-party 3, the non-party 2, the non-party 3, the non-party 2, the
2. As to the ground of appeal No. 2 by the Plaintiff’s attorney
(1) According to the reasoning of the judgment below, the court below rejected the defendant's liability to pay damages to the non-party company's bereaved family members, in addition to the principal and interest of the non-party company's accident compensation liability as joint tortfeasor, as well as the damages incurred by the non-party company's bereaved family members. Since the non-party company's liability to pay damages to the non-party company's bereaved family members was not limited to 22,471,790 won for stamp, delivery fees, various application costs, and attorney's fees, etc. The defendant's liability to pay damages to the non-party is not limited to the non-party's liability to pay damages to the non-party company's non-party joint tortfeasor. Since the non-party company's liability to pay damages to the non-party company's bereaved family members is not limited to 29,025,23 won, and the other party's liability to pay damages to the non-party company's non-party joint tortfeasor is not limited to 1's liability to reimburse damages.
(2) However, if one of the joint tortfeasors is jointly indemnified by paying the amount recognized in the judgment as compensation for damages as a result of a lawsuit filed by the victim for damages, barring special circumstances, such as unfair response, the amount of the joint tortfeasor's liability can be claimed as well as the amount equivalent to the percentage of the other joint tortfeasor's fault, statutory interest after the date of joint immunity, and other expenses that cannot be avoided after the date of the joint exemption. Such other expenses cannot be claimed as compensation for damages include not only the amount paid by the joint tortfeasor who has filed the lawsuit but also the expenses paid in the course of the lawsuit. Of the attorney's fees, the compensation criteria for the attorney's fees under the rules on the inclusion of the attorney's fees, the rules of the affiliated attorney's meeting, the value of the subject-matter of the lawsuit, the difficulty of the case, the process of the lawsuit, and the result of the judgment, etc., and the amount within the reasonable scope can be claimed as the expenses and other damages that cannot be avoided (see Supreme Court Decision 94Da2857, Oct. 12, 1995).
On the other hand, in case where only one of the joint tortfeasors has participated in a lawsuit and brought a lawsuit as a supplementary intervenor only when the other joint tortfeasor was brought in the appellate court, the costs of lawsuit paid by the intervenor after the appellate court participated in the lawsuit are to defend his rights, and cannot be viewed as the costs for joint immunity. Therefore, it is not allowed to claim compensation against the joint tortfeasor who participated in the lawsuit (see Supreme Court Decision 94Da48257 delivered on October 12, 1995). However, the costs of lawsuit paid to the court prior to the participation in the lawsuit shall be deemed as the costs for joint immunity, unless there are special circumstances such as the participation in the appeal, and the response shall be interpreted as having the right to claim compensation against the other joint tortfeasor.
In this case, first of all, according to the records, the plaintiff's claim for reimbursement of KRW 29,00,000,000 for the costs of lawsuit that the plaintiff paid to the bereaved family members of the victim of the traffic accident of this case, after the judgment on the claim for damages filed by the victim of the traffic accident of this case against the non-party company became final and conclusive, and the non-party company filed an application for determination of the amount of litigation costs with the Suwon District Court 93Ka1363, and notified the non-party company to confirm that the amount of litigation costs to be reimbursed to the bereaved family members is KRW 29,025,23,00,00 for the non-party company to which the vehicle involved in the accident of the non-party company was a party to the accident of this case. Accordingly, the court below has presented evidence in accordance with this, it should have determined the validity of the plaintiff's claim for reimbursement of this part of this case after determining the amount of litigation costs
On the other hand, according to the records, the non-party company, one joint tortfeasor of this case, filed a lawsuit against the victims in response to the claim for damages filed by the non-party company from the above bereaved family members. According to the records, the defendant, who is the other joint tortfeasor, did not participate in the lawsuit at the appellate court and maintained the participation in the appellate court (see evidence No. 1-1, No. 2, and No. 3 of this case). Thus, the court below should find out whether the defendant participated in the lawsuit at any stage of the above lawsuit, and further examine whether the non-party company's response (or appeal) is an unfair response, and then determine the legitimacy of the plaintiff's claim and the plaintiff's claim should be determined after determining the amount of the plaintiff's claim for damages, etc., unless there are special circumstances to see that the non-party company's response (or appeal) is an unfair response.
Nevertheless, the lower court rejected all the Plaintiff’s assertion on the grounds as indicated in its reasoning, which does not err by misapprehending the legal doctrine on the scope of the right to indemnity. There is a ground to point this out.
3. Therefore, the part of the judgment of the court below against the plaintiff regarding the claim for reimbursement of legal costs, including attorney fees, shall be reversed, and that part of the case shall be remanded to the court below for a new trial and determination. The remaining appeals by the plaintiff and the defendant's appeal shall be dismissed, respectively. The costs of appeal against this part shall be assessed against each party's own expenses and shall be so decided as
Justices Cho Chang-tae (Presiding Justice)