Where an applicant seeks recognition on the initial claim amount in the procedure for determining the amount of litigation costs after a judgment has become final and conclusive pursuant to the reduced claim, the case holding that the relevant application is simultaneously seeking a judgment on the burden of litigation costs for the part for which a lawsuit has been concluded by the final and conclusive judgment, and without resorting to the final and conclusive judgment and the judgment on

Articles 100, 104(1) of the Civil Procedure Act

Dongnam Unemployment Corporation

No. 200

Busan District Court Order 94Kao1900 delivered on August 10, 1994

1. The order of the court below is modified as follows.

2. A. On April 7, 1994 between the above parties, Busan District Court 93 Gohap29238 decided that the Respondent is 128,350 won that the amount of the litigation cost that the Respondent has to pay to the applicant according to the ruling of the price of goods.

B. Of the above cases, the litigation costs for the part for which the lawsuit was concluded due to the withdrawal of the lawsuit between the above parties shall be borne by the respondent, and the respondent shall confirm that the amount of the litigation costs that the respondent has to reimburse to the applicant is KRW 655,70

1. The record reveals the following facts.

A. On November 17, 1993, the applicant filed a lawsuit seeking payment of the remainder of the synthetic leather products sold to the respondent between February 28, 1990 to November 12, 1991, as the price for the goods in Busan District Court 94Na3537 on November 17, 1993 with the respondent as the other party.

B. After the filing of the lawsuit, the respondent paid KRW 40,00,000 on December 3, 1993 to the applicant as payment of the remaining amount, KRW 30,000,00 on July of the same month, KRW 50,000 on January 7, 1994, KRW 8,709,311 on the same month.

C. On March 17, 1994, the fourth day for pleading of the lawsuit at issue, the applicant reduced the amount of KRW 16,488,500, which is the remainder after deducting the claim of the above case from the remaining amount of 128,709,311, and the amount of KRW 4,438,220, the amount of the error in calculation, which was repaid as above, from the remaining amount of the remaining amount of the lawsuit at issue. On April 7, 1994, the above court rendered a judgment that the Defendant ordered the Plaintiff to pay the amount of KRW 16,48,50, and damages for delay, and that the costs of the lawsuit shall be borne by the Defendant.

The respondent appealed on April 26, 1994, but withdrawn the appeal on May 26, 1994, and the above judgment became final and conclusive on the same day.

D. In filing the instant lawsuit, the applicant paid KRW 748,100,00, the first claim amount of KRW 149,636,031, which is the amount of KRW 149,636,031. The applicant spent KRW 14,510, and the amount of KRW 27,000 for the witness travel expenses. Upon filing an application for the determination of confirmation of the litigation costs of the instant case, the applicant spent KRW 1,00,000 and KRW 3,440 as the document attached to the application.

2. Grounds for appeal;

The grounds for the appeal of this case by the applicant are wrong to determine that only KRW 82,400,00, which is the appropriate stamp for the claim finally reduced in relation to the counter-statement of the complaint, is the litigation cost to be repaid by the respondent, since the applicant's appeal of this case is erroneous to determine that "the court below's judgment against the defendant was made and the amount of the litigation cost to be borne by the defendant is determined as the amount to be borne by the defendant," and to seek a reasonable decision again after cancelling the order of the court below.

3. Determination

A. According to the above facts, since the portion of KRW 16,488,50 out of the above product price case filed by the applicant was completed by a final judgment, the applicant has to seek the confirmation of the cost of lawsuit to be reimbursed by the application procedure for confirmation of the amount of litigation costs arising out of this part in accordance with the method prescribed in Article 100 of the Civil Procedure Act. Since the remainder of KRW 133,147,531 is completed by the withdrawal of lawsuit without the final judgment, the applicant has to file an application for a judgment on the burden of litigation costs as to this portion with the pending court at the time the lawsuit is completed, as stipulated in Article 104 of the Civil Procedure Act.

B. However, when filing an application for confirmation of the amount of litigation costs concerning the above case, the applicant sought reimbursement of 149,636,031 won, which is the first claim amount, from 748,100 won. The above applicant's application of this case is not based on a final judgment and a final judgment, but at the same time sought a judgment on the burden of litigation costs for the part for which the lawsuit is concluded, and not based on a final judgment. In particular, in this case, it is reasonable to view the applicant's intent as above in light of the fact that the court having jurisdiction over the above two types of procedures is identical to Busan District Court, and there is no other cost than for the overlapping of a complaint with regard to the part for which the lawsuit is concluded, and it is reasonable to interpret the applicant's application of this case restrictedly and interpret the applicant's application of this case to view only the applicant's application for the determination of the amount of litigation costs for the part for which the lawsuit is concluded by the judgment, while the respondent bears unnecessary pain to the applicant, but also the applicant's claim for confirmation of litigation costs as well.

C. Accordingly, with respect to the claim amounting to KRW 16,48,50 in the instant case for which the lawsuit was concluded by the final judgment, the Respondent’s litigation costs that the Respondent has to reimburse to the applicant are KRW 82,400 in relation to the above claim amount, KRW 14,510 in delivery fees, KRW 27,00 in witness travel expenses, KRW 1,00 in the stamp on which the application form for the determination of litigation costs of the instant case was posted, KRW 3,440 in total, KRW 128,350 in delivery fees, KRW 128,350 in relation to the above claim amount.

D. Furthermore, in relation to the amount of KRW 133,147,531, which has been concluded by the withdrawal of a lawsuit, the fact that most of the applicants withdrawn a claim equivalent to the above amount as above is that the respondent paid the above amount after the filing of the lawsuit. As such, all the litigation costs incurred by the withdrawal of the lawsuit are deemed reasonable to be borne by the respondent of the above case. Accordingly, the litigation costs that the respondent has to pay to the applicant is the legitimate stamp for the above claim amount of KRW 665,700 ($ 133,147,531 x 5/100).

4. Conclusion

Therefore, by the judgment of the above case, the respondent determined that the amount of the litigation cost to be repaid to the applicant is KRW 128,350, and all the litigation cost arising from the withdrawal of the lawsuit in the above case shall be borne by the respondent, and that the respondent is KRW 665,700, the amount of the litigation cost to be repaid to the applicant by the respondent shall be determined. The judgment of the court below is unfair in conclusion, and it is so decided as per Disposition.

Judges Lee Jung-Jung (Presiding Judge)