[1] Whether an attorney fee included in the litigation cost includes an agreement between the parties to pay ex post facto (affirmative), and whether the attorney fee included in the litigation cost can be acknowledged in the attorney fee where a third party, not a party, has paid the attorney fee (affirmative with qualification)

[2] The case holding that in a case where Gap filed a lawsuit against Eul, a trustee of a trust agreement, and Eul, a truster of a trust agreement, agreed to substitute for payment of attorney fees to be paid by the other party upon delegation of the above lawsuit to law firm in accordance with the trust agreement, and the judgment below became final and conclusive that Gap shall bear litigation costs, and Eul filed a claim for determination of litigation costs against Eul, the court below erred in the misapprehension of legal principles as to attorney fees included in the litigation costs, on the ground that Eul's fees to be paid by Byung company in accordance with the above lawsuit's fees agreement cannot be deemed the same as the payment by Eul company to Eul, and that the attorney fees to be paid by Byung company in accordance with the rules on inclusion of litigation costs in the amount of litigation costs should be recognized as litigation costs, and that the attorney fees to be paid by Eul company in accordance with the rules on inclusion of attorney fees in the amount of litigation costs shall be deemed to be included in the litigation costs to be paid by Eul company, as the fees to be paid to Eul company.

[1] Article 109(1) of the Civil Procedure Act provides, “The fees paid or to be paid by a party to an attorney-at-law who has represented in a lawsuit shall be recognized as litigation costs within the scope of the amount determined by the Supreme Court Regulations.” Article 3(1) of the Rules on the Inclusion of Litigation Costs for Attorney Fees provides, “The fees of an attorney-at-law to be included in the litigation costs shall be calculated according to the standards in the attached Table per instance within the scope of the amount paid or to be paid by the

The remuneration of a lawyer included in the litigation cost shall include not only the actual payment by the party’s remuneration contract but also the ex post facto payment. If a third party’s payment may be deemed the same as the payment by the party’s payment, the remuneration may be recognized as the attorney’s fee included in the litigation cost.

[2] In a case where Gap filed a lawsuit against Eul, a trustee under a trust contract, and Byung corporation, a truster of a trust contract, agreed to substitute for the payment of attorney fees to be paid by the other party through a later application for determination of litigation costs pursuant to the trust contract, and upon the judgment of Gap became final and conclusive, Eul filed an application for determination of litigation costs against Eul, the case held that the court below erred in the misapprehension of legal principles as to the litigation costs by misapprehending the legal principles on the ground that Byung's agreement to pay the attorney fees to Byung corporation, a party of the lawsuit, pursuant to a trust agreement, pursuant to a trust agreement, is based on the trust agreement stipulating the liability for the performance of the lawsuit related to trust property and the burden of expenses, etc. inside the company, and thus, the attorney fees to be paid by Byung corporation pursuant to the contract cannot be deemed the same as the payment to Eul corporation, which is the party of the lawsuit, and the amount of attorney fees to be paid by Eul shall be included in the litigation expenses to be paid by Eul as the amount to be paid to the corporation pursuant to the contract for determination of litigation costs.

[1] Article 109(1) of the Civil Procedure Act, Article 3(1) of the Rules on the Inclusion of Costs of Litigation for Attorney Fees / [2] Article 109(1) of the Civil Procedure Act, Article 3(1) of the Rules on the Inclusion of Costs of Litigation for Attorney Fees

[1] Supreme Court Order 2004Ma1055 dated April 30, 2005

KB Real Estate Trust Co., Ltd. (Law Firm A&C, Attorneys Choi Won-ro, Counsel for the defendant-appellant)

Respondent

Seoul Northern District Court Order 2018Ra1132 dated November 28, 2019

The order of the court below is reversed, and the case is remanded to the Seoul Northern District Court.

The grounds for reappeal are examined.

1. Article 109(1) of the Civil Procedure Act provides, “The fees paid or to be paid by a party to a lawsuit to an attorney-at-law who has represented the lawsuit shall be recognized as litigation costs within the scope of the amount determined by the Supreme Court Regulations.” Article 3(1) of the Rules on the Inclusion of Litigation Costs for Attorney Fees (hereinafter “Rules on Remuneration”) provides, “The fees of an attorney-at-law included in the litigation costs shall be calculated according to the standards in the attached Table per instance within the scope of the remuneration paid or to be paid by the party under a contract on remuneration

The remuneration of a lawyer included in the litigation cost shall include not only the actual payment by the party’s fee contract but also the ex post facto payment (see Supreme Court Order 2004Ma1055, Apr. 30, 2005, etc.). If a third party’s payment is deemed the same as the payment by the party, the remuneration of a lawyer included in the litigation cost may be recognized as the remuneration of a lawyer included in the litigation cost, if it

2. The record reveals the following facts.

A. According to the instant trust contract concluded between the Re-Appellant, Inc., the piracy Global (hereinafter “Elimination”) and the Re-Appellant, the trustee does not assume any obligation to conduct procedural acts concerning trust property, except where the beneficiary consented to the request (main sentence of Article 10), and the truster and the contractor are, in principle, responsible for all lawsuits and civil petitions arising in connection with the instant business (Article 20(1) of the Special Agreement).

B. In relation to the trust property of this case, the respondent filed the instant lawsuit against the re-appellant, who is the trustee, and the piracy delegated the representation of the instant lawsuit to the law firm L&C (hereinafter “A&C”) in accordance with the trust contract of this case, and agreed that the remuneration will be paid in lieu of the attorney’s fee to be paid by the other party through the application for confirmation of the amount of litigation costs.

C. The Re-Appellant appointed A&C as a legal representative to perform the instant principal lawsuit. When the judgment that the Respondent bears the litigation costs in the instant principal lawsuit became final and conclusive, the Re-Appellant filed an application against the Respondent for the determination of the amount of litigation costs in the instant case.

3. We examine the above facts in light of the legal principles as seen earlier.

A. It is in accordance with the instant trust agreement to which the piracy agreed to pay the remuneration to A&C, representing the trust property in this case’s principal lawsuit in relation to the trust property, is according to the agreement between the piracy and the re-appellant who is the party to the lawsuit. Therefore, the attorney’s fee to be paid to A&C according to the above fee agreement may be deemed the same as that paid by the re-appellant, who is the party to the lawsuit. In addition, the attorney’s fee to be determined by the fee rules in accordance with the above fee agreement, as the remuneration to be paid to A&C, is included in the litigation cost to be repaid by the Respondent.

B. Nevertheless, the lower court determined the amount of litigation cost that the respondent has to pay to the Re-Appellant on the ground that the Re-Appellant did not have paid or has paid attorney fees as zero won. According to the lower court’s judgment, the Respondent did substantive procedural acts for the Re-Appellant in the instant principal lawsuit filed against the Re-Appellant by the Respondent, and as a result, the Respondent did not receive legal fees from the truster as well as the Respondent who is the party to the lawsuit, even though the judgment became final and conclusive to have the Respondent bear litigation costs, and the Respondent did not receive any unreasonable result that would be exempted from its repayment obligation.

In so determining, the lower court erred and adversely affected the conclusion of the judgment by misapprehending the legal doctrine on attorney fees included in the costs of lawsuit, and by failing to exhaust all necessary deliberations as to the details of the instant trust agreement and the background leading up to which A&C acted as an agent in the principal lawsuit of this case, and the details of the fee agreement.

4. Therefore, 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)