[1] The case holding that the contract for delegation of a lawsuit was lawfully terminated due to the client's declaration of termination on the ground that the act of an attorney-at-law to file a lawsuit against the client on behalf of the client's employee was an act of impairing the client's fundamental trust with the client

[2] The nature of the retainers paid by an attorney upon acceptance of a litigation case and the scope of return of the retainers where a litigation delegation contract is terminated

[3] Requirements for recognizing consolation money in a case where damage was incurred due to a mandatary's default in a delegation contract

[1] The case holding that, on the ground that an attorney-at-law entrusted with the power of attorney is obligated not to act faithfully to protect the rights of the client based on professional legal knowledge and experience in performing the delegated duties, but to act not to undermine the trust relationship with the client, etc., and thus, the attorney-at-law has a duty not to act fundamentally, etc. to protect the trust relationship with the client, the act of filing a lawsuit against the client on behalf of the client who was an employee of the client even without the same case is an act of impairing the trust relationship with the client, and thus, the delegation contract of lawsuit was lawfully terminated

[2] Since an attorney-at-law is generally deemed to have the nature of the pre-payment of the cost of disposal of delegated affairs and of some advance payment, when the delegation contract is terminated, the attorney-at-law, who is the mandatory, is obligated to return part of the retainers in light of the degree of business administration

[3] In general, in case where the purpose of delegation cannot be achieved due to the default by the mandatory in the delegation contract, and the damage occurred due to that failure, the mental suffering that the delegating person received shall be deemed to have been recovered by compensating for the property damage. There are special circumstances that the delegating person suffered an irrecoverable mental suffering due to the compensating for the property damage, and where the mandatary knew or could have known such circumstance, the consolation money for mental suffering may be recognized only in case where he knew or could have known it.

[1] Articles 543, 680, and 681 of the Civil Act / [2] Articles 543, 686, and 687 of the Civil Act / [3] Articles 393 and 681 of the Civil Act

[2] Supreme Court Decision 82Da125, 82Meu284 decided September 14, 1982 (Gong1982, 909) / [3] Supreme Court Decision 96Da36289 decided December 10, 1996 (Gong197Sang, 319), Supreme Court Decision 2002Da53865 decided November 12, 2004 (Gong2005Sang, 1)

Alanz Life Insurance Co., Ltd. (Attorney Shin-soo et al., Counsel for the defendant-appellant)

Defendant

September 2, 2005

1. The Defendant: 15,00,000 won to the Plaintiff and 5% per annum from April 16, 2005 to September 16, 2005 to the Plaintiff;

It shall be paid at a rate of 20% per annum from the next day to the day of full payment.

2. The plaintiff's remaining claims are dismissed.

3. Of the costs of lawsuit, 4/5 shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

4. Paragraph 1 can be provisionally executed.

The defendant shall pay to the plaintiff 10,215,00 won with 5% interest per annum from September 19, 2003 to the delivery date of a copy of the complaint of this case, and 20% interest per annum from the next day to the day of complete payment (as to the liquidation amount caused by termination of the delegation contract, the plaintiff shall claim for the delay damages at the rate of 20% interest per annum from the day after the copy of the complaint of this case is served to the day of complete payment).

1. Basic facts

The following facts are not disputed between the parties, or can be acknowledged in full view of the purport of the whole pleadings in each of the statements in Gap evidence 1, Gap evidence 2-1 to 4, Gap evidence 3, Gap evidence 4-1 to 9, Gap evidence 8, and 13.

A. From March 2003 to March 2004, the Plaintiff engaged in the life insurance business, delegated the Defendant with 16 lawsuits, such as filing a claim for insurance money, filing a lawsuit for confirmation of existence of an obligation for payment of insurance money, and a lawsuit for adjudication of real estate name. Article 4 of the delegation contract of each of the above cases stipulates that the Defendant, as an attorney, shall perform delegated duties as a good manager according to the intent of delegation based on the rights and duties prescribed by law, as a good manager. Article 6 of the Act provides that the Plaintiff shall simultaneously pay the commencement fee to the Defendant upon the formation of delegation contract, and Article 7 provides that the contingent fee to be paid when the Plaintiff successfully

B. On February 18, 2004, the defendant filed a lawsuit against the plaintiff on June 30, 2004, claiming that the above non-party applied for interim settlement of retirement pay against the plaintiff on behalf of the non-party Han-jin et al. and 158 workers of the plaintiff (Seoul Life Insurance Co., Ltd.) for interim settlement of retirement pay, and received money from the plaintiff on June 30, 1998, the plaintiff should be revoked on the ground that the application for interim settlement was defective, and that the total period of service should be calculated by adding up the period of service from the first service to the last service day, and filed a lawsuit claiming retirement pay against the plaintiff from the time of that time to August 23, 2004, including five cases against the plaintiff, the total sum of the plaintiffs 278, and about 7.6 billion won in total.

C. At the time of April 2004, 7 of the said 16 lawsuits were final and conclusive, and the remaining 9 cases were in progress. On April 1, 2004, the Defendant notified the Plaintiff that the instant 9 cases would be rescinded on the ground that the Defendant could no longer expect the normal performance of the contract by filing a lawsuit against the Plaintiff on behalf of the said employee. At that time, the said notification reached the Defendant.

2. The assertion and judgment

(a) A captain;

The plaintiff filed a lawsuit against the plaintiff who is the client of the case currently accepted by the third party by acting as the third party, and breached the duty of due care as a good manager in accordance with the main text of each of the above delegation contracts. As such, the plaintiff's contract for the above nine cases was lawfully rescinded or terminated by the plaintiff's notice of cancellation on April 1, 2004, the defendant asserted that the plaintiff violated the above 4,5650,000 won (including value added tax) as to the above nine cases due to the plaintiff's performance of duty of restoration or liquidation, and that the defendant breached the duty of due care as to the above nine cases (including value added tax), and that the new attorney was appointed due to the cancellation or termination of the delegation contract for the above nine cases due to the violation of the duty of restoration or liquidation, and thus, the plaintiff did not have any obligation to pay damages to the plaintiff's above 4,565,000 won as compensation for damages.

(b) Markets:

(1) Termination and liquidation of a contract for delegation of a lawsuit

Since delegation is based on a special trust relationship between both parties, it is reasonable to view that the mandatory has a duty of care as a good manager in accordance with the terms of delegation. In particular, an attorney-at-law delegated as a litigation agent has a duty not to act faithfully to protect the rights of the client based on professional legal knowledge and experience in performing his/her delegated duties, and there is a duty not to act to fundamentally undermine the trust relationship with the client. According to the above findings of recognition, even though the defendant was represented by the plaintiff in the same case, the act of filing a lawsuit against the plaintiff on behalf of the employee of the plaintiff is very sensitive to the plaintiff who employs a large number of workers, and therefore, the act of bringing a lawsuit against the plaintiff in labor relation amounting to 7.6 billion won in total is a very sensitive case to the plaintiff who is employed by the plaintiff and the defendant, and therefore, the delegation contract between the plaintiff and the defendant with respect to the above 9 cases between the plaintiff and the defendant is lawfully terminated by the plaintiff's declaration of termination on April 1, 2004, and thus, the defendant cannot accept the plaintiff's obligation not to cancel the contract.

(2) Scope of liquidation obligation

(A) Facts of recognition

In full view of the overall purport of the arguments in the statements in Gap 1, 3, and 1 to 9, Eul 12-1 to 12-9, Eul 1-7, and Eul 2-1 to 9, the defendant's retainers received from the plaintiff in the above 9 cases and the delegated affairs of the lawsuit in relation to each of the above 9 cases can be acknowledged as follows:

(1) Incheon District Court No. 2003Na8275 (O. 1, 2003): 5.5 million won (including value-added tax; hereinafter the same shall apply) for retainers.

In the above case, which was the appellate court of the Incheon District Court case No. 2002Gaso31988 (the plaintiff's partial winning of the judgment) against the plaintiff, the defendant submitted a petition of appeal and a preparatory document at one time, and the plaintiff was appointed as the attorney on March 22, 2004. On the other hand, the plaintiff filed an application for witness from the Kim Jong-ju and the attorney-at-law from the Kim Jong-chul, the plaintiff filed an application for a new trial on August 19, 2004, and the preparatory document was closed on September 2, 2004, and the part of the judgment of the court of first instance was changed on September 2, 2004.

(2) Seoul Southern District Court 2003Gahap4779 (receiving on April 9, 2003): 5.5 million won

In the case of seeking insurance money of KRW 400 million against the plaintiff in the instant case where the defendant submitted written answers and briefs (five pages) one time each, and the defendant took cross-examination against the witness light water, and two times during the preparatory date for pleading and the date for pleading respectively, respectively, and the pleading was concluded on March 12, 2004, which is the last day for pleading, and thereafter on March 18, 2004, the plaintiff appointed the attorney-at-law who was Kim Jong-ju as the legal representative on March 18, 2004, and filed an application for resumption, but did not resume, and was sentenced to a judgment of winning part of the plaintiff on March 26, 2004.

(3) Gangnam Branch Branch of the Chuncheon District Court 2003Gadan11222 (Receipt on August 13, 2003): 4.4 million won in retainer.

In the above case where the non-party 10 million won and damages for delay against the plaintiff were claimed by the non-party 3, the defendant submitted a written reply (7 pages) and a preparatory document (4 pages) once, respectively, and attended once at the preparatory date for pleading and the preparatory date for pleading, and examined the witness leap person. On April 16, 2004, the plaintiff appointed the non-party 1, the attorney-at-law belonging to the court as the legal representative on June 9, 2004 and the judgment of winning the plaintiff was rendered on July 7, 2004.

(4) Seoul Central District Court 2003Kadan193751 (receiving on May 28, 2003): 2750,000 won

In the above case where Nonparty 1 et al. claimed 41,625,000 won against the Plaintiff and two insurance companies, and damages for delay thereof, the Defendant submitted five preparatory documents (18 pages) to the Plaintiff, and the Defendant appeared at two times during the preparatory date for pleading and one time at the preparatory date for pleading, and the judgment of winning the Plaintiff on July 15, 2004, which was the date for pleading, was concluded on July 15, 2004, and was sentenced to the judgment of winning the Plaintiff on August 12, 2004.

(5) Suwon District Court 2003Gahap7855 (receiving on June 19, 2003): 5.5 million won for retainers.

In the above case where the plaintiff seeks confirmation of the non-existence of insurance money payment obligation against the non-party Kim Jong-sung (the non-party Kim Jong-sik filed a counterclaim against the plaintiff in the above case against the plaintiff, which is 294,290,200 won of insurance money and damages for delay thereof). The defendant submitted a complaint (7 pages) and requested a fact inquiry, and submitted a preparatory document twice (12 pages). The plaintiff appeared at each time during the mediation date and the preparatory date, and on September 10, 2004, the plaintiff appointed the above yellow iron as the legal representative on October 29, 2004. After that, on November 2, 2004, the plaintiff resigned from the above case, and on November 16, 2004, the first day of pleading was closed, and thus, the judgment of winning part of the defendant's obligation to pay insurance money to the plaintiff on November 16, 2004.

6. Seoul Southern District Court 2003Gahap10897 (the receipt on August 19, 2003): 6.6 million won

In the above case where Nonparty 168,217,650 won of insurance proceeds and damages for delay against the Plaintiff, the Defendant submitted two preparatory documents (total of six pages) and attended three times during the preparatory date for pleading, and the above case was closed on May 19, 2004.

(7) Seoul Central District Court 2003Gahap10853 (2. 12. 2003): 6.6 million won per retainer.

In the above case where Nonparty 1, the largest net office against the Plaintiff et al. and two insurance companies, sought payment of the insurance money of KRW 70 million and damages for delay thereof, the Defendant submitted the preparatory documents twice (per 13 pages) and applied for an entrustment of fact-finding. The Defendant appeared once on the preparatory date for pleading and the date for pleading, and the cross-examination on the witness misunderstanding was conducted. On May 28, 2004, the Plaintiff appointed the said yellow iron as the legal representative on two occasions after the date for pleading was closed on July 22, 2004, and was sentenced to a judgment of winning part of the Plaintiff on August 12, 2004.

(8) Seoul Southern District Court 2003Kadan54159 (receiving September 8, 2003): 4.4 million won

In the above case where the plaintiff seeks confirmation of the non-existence of the insurance money payment obligation against the non-party Hansung, the defendant submitted a complaint (seven pages) on behalf of the plaintiff, and the above case was transferred to the Jeonju District Court 2004Kadan15937, and the plaintiff appointed the non-party in the military service as the legal representative on August 20, 2004. The defendant resigned on September 15, 2004, and the above case became final and conclusive on December 9, 2004.

(9) Seoul Central District Court 2003Kadan49621 decided December 19, 2003 (receiving on December 19, 2003): 4.4 million won

In the case of the above case where Non-party 1, who claimed payment of insurance money of KRW 50 million against the plaintiff and one insurance company, the defendant submitted a reply (6 pages) to the plaintiff, and on February 6, 2004, the plaintiff appointed an attorney-at-law to the non-party 1 as the legal representative, the defendant resigned on September 14, 2004, and the above case is currently pending.

(b) the sales board;

Since an attorney-at-law has the nature of the cost of disposal of delegated affairs and the advance payment of part of the fees received from the client, if the contract for a lawsuit is terminated, the attorney-at-law, who is the mandatory, has the duty to return part of the retainers in light of the degree of administrative affairs, etc. In this case, as seen above, it is reasonable to exclude the part of value-added tax out of the retainers paid by the defendant, the content and degree of delegated affairs, the number of the documents submitted by the defendant, the number of the documents submitted by the defendant, the time of the termination of the contract, the time of termination of the contract, the situation after the termination of the contract, etc.

(3) Determination on the claim for damages and consolation money

(A) First of all, even if the above nine delegation contracts were terminated due to the defendant's causes attributable to the defendant, there is no evidence to acknowledge that the plaintiff suffered losses equivalent to 10% of the retainers or that the defendant paid damages equivalent to the above amount. Thus, the plaintiff's above assertion is without merit without further review.

(B) Next, the part of the claim for consolation money is examined as follows: in case where, in general, the purpose of delegation cannot be achieved due to the default by the mandatory under the delegation contract, the mental suffering that the delegating person received shall be deemed to have been recovered by making compensation for its property damage; there are special circumstances that the delegating person suffered irrecoverable mental suffering by compensating for its property damage; and where the mandatary knew or could have known such circumstance, consolation money for mental suffering can be recognized only if he knew or could have known such circumstance (see Supreme Court Decision 96Da36289 delivered on December 10, 196). Thus, the plaintiff suffered irrecoverable mental suffering other than property damage, and there is no evidence that the defendant knew or could have known such circumstance. Thus, the plaintiff's above assertion is without merit.

3. Conclusion

Therefore, the defendant is obligated to pay to the plaintiff 15 million won and damages for delay at the rate of 5% per annum under the Civil Act and 20% per annum under the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings from September 16, 2005, which is the date following the delivery date of a copy of the complaint of this case as to the plaintiff 15 million won and the defendant from April 16, 2005 to September 16, 2005, which is the date of the decision of this case, and from the next day to the date of full payment. Thus, the plaintiff's claim of this case of this case is justified within the above scope of recognition, and the remainder of the claim is dismissed as it is without merit, and

Judges highest (Presiding Judge)