Whether Article 2 (2) of the Addenda applies to a counterclaim filed at the appellate trial stage prior to the enforcement of the provision on statutory interest rate under Article 3 (1) of the Act on Special Cases Concerning Expedition, etc. of Legal Proceedings (affirmative)

Article 3(1) main sentence of Article 3(1) of the Act on Special Cases concerning Expedition, etc. of Legal Proceedings (amended by Presidential Decree No. 26553, Sept. 25, 2015) provides that “The statutory interest rate under the main sentence of Article 3(1) of the Act on Special Cases concerning Expedition, etc. of Legal Proceedings shall be 15/100 per annum.” Article 2(1) of the Addenda provides that “The statutory interest rate under the main sentence of Article 3(1) of the Act on Special Cases concerning Expedition, etc. of Legal Proceedings shall be 20% per annum, which was the former statutory interest rate, shall be 15/100 per annum.” Article 2(1) of the Addenda provides that “Notwithstanding the amended provisions of this Decree, the former provisions shall apply to cases in which the first instance trial is pending at the court at the time this Decree enters into force, and the statutory interest rate under the former provisions concerning cases for which the first instance trial has not been concluded.”

In light of the purport of the amendment of the provision on the amendment, if the counterclaim was filed by the defendant at the appellate trial stage, and the counterclaim was pending in the court before the enforcement of the amended provision, but the pleading was concluded after the enforcement of the amended provision, the interest rate under the previous provision shall be the statutory interest rate until September 30, 2015, and from October 1, 2015, the interest rate under the amended provision shall be the interest rate under the amended provision.

Article 3(1) of the Act on Special Cases Concerning Expedition, etc. of Legal Proceedings, Article 2 of the Addenda to the Regulations on Legal Interest Rate in the main sentence of Article 3(1) of the Act on Special Cases Concern

Plaintiff (Counterclaim Defendant)

Defendant-Counterclaim (Law Firm Masung, Attorneys Shin Jae-sung et al., Counsel for the defendant-Counterclaim plaintiff-appellant)

Suwon District Court Decision 2014Na2540, 9893 decided November 20, 2015

Of the part concerning damages for delay in the counterclaim of the lower judgment, the part against the Plaintiff (Counterclaim Defendant) ordering payment of KRW 46,846,958 against the Plaintiff (Counterclaim Defendant) out of the part concerning damages for delay in the counterclaim of the lower judgment shall be reversed, and the remaining appeal shall be dismissed. The total costs of the lawsuit shall be borne by the Plaintiff (Counterclaim Defendant) in total by the Plaintiff (Counterclaim Defendant) for KRW 1,533,142 from January 29, 2014 to February 3, 2014; KRW 912,90 from February 6, 2014 to November 20, 2015; KRW 5% from the next day to the day on which full payment is complete. The part regarding damages for delay in the counterclaim of the lower judgment against the Plaintiff (Counterclaim Defendant) ordering payment of KRW 15% per annum. The total costs of the lawsuit shall be borne by the Plaintiff (Counterclaim Defendant).

1. Judgment on the ground of appeal by the Plaintiff (Counterclaim Defendant)

Examining the reasoning of the judgment below in light of the evidence adopted by the court below, the court below is just in holding that the plaintiff's claim of this case on the premise that the defendant (Counterclaim plaintiff; hereinafter "the defendant") borrowed KRW 50,00,000 from the plaintiff (Counterclaim defendant; hereinafter "the plaintiff") is without merit. On the other hand, the court below did not err by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or by misapprehending the legal principles on the establishment of the authenticity of the disposition document, which affected the conclusion of the judgment, as long as the court below seized and collected total of KRW 49,293,090 among the defendant's deposit claims based on the judgment of the first instance court on the provisional execution of this case prior to the plaintiff's filing of a subsequent appeal against the defendant's counterclaim, but the above judgment was revoked and the plaintiff's main claim is dismissed.

2. Ex officio determination on damages for delay

Article 3(1) main sentence of Article 3(1) of the Act on Special Cases concerning Expedition, etc. of Legal Proceedings (amended by Presidential Decree No. 26553, Sept. 25, 2015) provides that “The statutory interest rate under the main sentence of Article 3(1) of the Act on Special Cases concerning Expedition, etc. of Legal Proceedings shall be 15/100 per annum.” Article 2(1) of the Addenda provides that “The statutory interest rate under the main sentence of Article 3(1) of the Act on Special Cases concerning Expedition, etc. of Legal Proceedings shall be 20% per annum, which was the former statutory interest rate, shall be 15/100 per annum.” Article 2(1) of the Addenda provides that “Notwithstanding the amended provisions of this Decree, the former provisions shall apply to cases in which the first instance trial is pending at the court at the time this Decree enters into force, and the statutory interest rate under the former provisions concerning cases for which the first instance trial has not been concluded.”

In light of the purport of the amendment of the foregoing provision, if the counterclaim was filed at the appellate trial stage as in this case, and the counterclaim was pending in the court before the enforcement of the above amendment provision, but the pleading is terminated after the enforcement of the above amendment provision, the interest rate under the previous provision is set at the interest rate until September 30, 2015, and it is based on the interest rate under the amended provision from October 1, 2015.

Nevertheless, the lower court’s order to pay damages for delay at a rate of 20% per annum from November 21, 2015 to the date of full payment, which is the day following the date of the lower judgment’s determination, thereby adversely applying the statutory rate of damages for delay, thereby adversely affecting the conclusion of the judgment.

3. Conclusion

Therefore, the part of the judgment below's damages for delay of counterclaim is reversed, and this part is sufficient for this court to directly judge, and therefore, it is decided to self-market under Article 437 of the Civil Procedure

As duly determined by the lower court, the Plaintiff is obligated to pay KRW 49,293,090 to the Defendant on the basis of a counterclaim brought in the lower court as duly determined by the lower court. However, since a dispute over whether to pay the amount exists or the scope thereof is recognized to have considerable grounds, the Plaintiff is obligated to pay KRW 46,846,958 out of the above amount to the Defendant, which collected KRW 46,846,958 from January 29, 2014; from February 3, 2014; from February 6, 2014 to November 20, 2015, the Plaintiff collected KRW 912,90 as to the amount of KRW 46,83,142; and all of the remainder of the counterclaim and the costs of the counterclaim are assessed against the Plaintiff. The remainder of the counterclaim and the costs of the counterclaim are assessed against the Plaintiff by the assent of all participating Justices.

Justices Kwon Soon-il (Presiding Justice)