[1] Whether an attorney-at-law who has been delegated with the principal lawsuit in relation to the check of acceptance has a duty to take measures to preserve the right to the reported amount of security in the accident (negative)

[2] Whether an attorney-at-law who has been delegated with the principal lawsuit in relation to the check at issue has a duty to explain and advise the mandator to take measures to preserve the right to the reported amount of accident security (affirmative)

[1] In general, the mandatory has the duty of due care as a good manager in accordance with the substance of the delegation. In particular, an attorney-at-law who has been delegated a legal representative shall faithfully protect the client's rights based on professional legal knowledge and experience in performing the delegated affairs. However, the specific scope of delegated affairs is determined by the delegation contract between the attorney and the client, and it cannot be said that the attorney-at-law has the general duty to take all necessary measures to protect the client's property and other rights beyond the scope of the delegation. Thus, if the attorney-at-law who has been entrusted with the principal lawsuit related to the stolen check has not been separately delegated the preservation of the right to the reported amount of accident, it cannot be deemed that the attorney-at-law has the duty to submit documents proving that the case is pending in the paying bank as a measure to preserve the right to the reported amount of accident.

[2] In light of the trust relationship between the client and the attorney-at-law and the client's expectation and awareness level, an attorney-at-law to be delegated with the principal lawsuit related to the accident declaration check has become aware of the fact that the accident declaration security deposit was deposited in the course of performing the delegated litigation even though the attorney-at-law was not separately delegated with the measures to preserve the right to the accident declaration security deposit, in this case, the check-at-law has a direct right to claim for the accident declaration security deposit by submitting a document proving that the check in question is pending to the payment bank and proving that the check is a legitimate holder later through a final and conclusive judgment, etc., so there has been a direct right to claim for the accident declaration security deposit. Therefore, from the legal expert's standpoint, the attorney-at-law has a duty to explain such measures to the delegating and provide necessary information to decide on whether to take specific measures necessary for the collection by the mandator.

[1] Articles 680 and 681 of the Civil Act / [2] Articles 680 and 681 of the Civil Act

13 133 144

Defendant (Attorney Yellow Jin-hun, Counsel for defendant-appellant)

Seoul High Court Decision 2000Na43040 delivered on January 11, 2002

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

1. Ground of appeal No. 1

In general, a mandatary shall fulfill the duty of due care of a good manager in accordance with the nature of the mandate, and in particular, an attorney-at-law who has been delegated a legal representative shall faithfully protect the client's rights based on professional legal knowledge and experience in performing the delegated affairs. However, the scope of specific delegated affairs shall be determined by the terms of delegation contract between the attorney and the client, and it shall not be deemed that the attorney-at-law has a general duty to take all measures necessary to protect the client's property and other rights. Thus, if an attorney-at-law who has been delegated with the principal lawsuit related to the check has not been separately delegated with the preservation of the right to the reported amount of accident, he/she cannot be deemed to have a duty to submit to the payment bank a document certifying that the case is pending in the lawsuit as a measure to preserve the right to the reported amount of accident.

The court below held that there is not sufficient evidence to acknowledge that the defendant was delegated by the plaintiff or his agent to preserve the right to KRW 600 million in the amount of the report security of the accident of this case. In the course of accepting the loan claim lawsuit against the plaintiff or his agent, the plaintiff or the non-party 1, who was the issuer of each of the checks of this case, the non-party 2, who was the issuer of each of the checks of this case, was entrusted with the preservation measures such as submitting a document proving the fact that the non-party 2 could not receive return of the amount of KRW 600 million in the report of the occurrence of the accident of this case, to the payment bank. Thus, the defendant cannot be deemed to have a duty to directly take measures to preserve the right to the above report security of this case for the plaintiff, and the judgment of the court below is just, and there is no violation of the rules of evidence, incomplete deliberation, or misapprehension of legal principles as otherwise alleged in the grounds for

2. The second ground for appeal

In light of the trust relationship between the client and the attorney-at-law and the client's expectation and awareness level, the attorney-at-law to be delegated with the principal lawsuit related to the accident declaration check shall be deemed to have the duty to provide legal advice to the delegating in order to specifically devise the means necessary for the recovery of the judgment, even if he/she did not separately receive the delegation of the measures to preserve the right to the accident declaration security deposit, if he/she becomes aware of the deposit of the accident declaration security deposit in the course of performing the delegated litigation affairs. In such cases, when the check holder submits a document attesting that the lawsuit on the check in question is in progress, and then expresses his/her intent to make profits through a final and conclusive judgment, etc., the check has a direct right to claim the accident declaration security deposit by proving that he/she is a legitimate holder.

However, according to the facts and records acknowledged by the court below, the defendant, who is the attorney of the non-party 1, had the duty to report the payment of each of the instant checks to the non-party 1 and the non-party 1's agent on September 13, 195, before the payment of the loan was made. On the date for pleading of each of the instant checks, the defendant filed a lawsuit claiming the payment of the loan amount with a copy of each of the instant checks attached thereto, and notified the plaintiff as to whether the payment of each of the instant checks was made after the date for pleading of the first suit. According to the plaintiff's judgment, the non-party 1, who was the issuer of the instant checks, did not request the return of the instant checks to the non-party 1 and the non-party 2's agent on the non-party 1's request for the return of the check amount to the non-party 1's agent on the non-party 1's date for pleading of the accident, and the defendant also presented a separate statement about the facts that it had not been made.

The fact-finding and judgment of the court below to the same purport are justified, and there is no error of law such as misunderstanding of facts due to violation of the rules of evidence or misunderstanding of legal principles as a good manager of the client as otherwise alleged in the ground of appeal.

3. Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Ji-dam (Presiding Justice)