[1] Where a judgment was rendered on a legal representative's duty of care and a case of acting as a legal representative, the scope of the legal representative's duty of explanation

[2] Whether an attorney-at-law entrusted with the original trial lawsuit failed to notify the client who is a party to the lawsuit of the appeal period violates his/her duty of care (negative)

[3] The case denying the attorney's liability for damages who represented a lawsuit, in case where the judgment became final and conclusive because the party did not know of the fact and did not appeal within the appeal period even though the victim's income activity period was calculated by mistake and calculated less actual income

[1] Where an attorney-at-law who is a legal expert is delegated to act as a litigation agent by the client, he/she has a duty of care as a good manager to protect the legitimate rights and interests of the client and prevent damage by acting in a lawsuit faithfully based on professional legal knowledge and experience in the performance of the affairs delegated by the client in light of his/her duties and expertise, and as a result, the client has a duty to explain the progress and result of the lawsuit to the extent necessary for the countermeasures. However, where the court rendered a judgment on the case as a litigation agent, the scope of the attorney's duty to explain is limited to the case where there is room for dispute even if there is a legal issue that causes excessive understanding and loss of the client, or even if it is consistent with the judgment or higher judgment contrary to the laws and regulations and superior review precedents, and it is reasonable to view that any errors in simple calculation or expressions, etc., which appear in the judgment, are excluded from the scope of the duty to explain unless there are special circumstances, such as prior knowledge of such circumstances within the appeal period.

[2] Even though an attorney-at-law delegated with the original trial lawsuit did not notify the client of the period of appeal, if the period of appeal is already stipulated in the law, notifying the client of this fact is merely for the convenience of the client. Thus, it cannot be readily concluded that the attorney-at-law delegated with the lawsuit did not immediately mean that he/she violated the duty of care.

[3] The case denying the lawyer's liability to compensate for damages where the judgment became final and conclusive because the party did not know of the fact and did not appeal within the appeal period even though the victim's income activity period was calculated by mistake in calculating the actual income of the victim

[1] Article 681 of the Civil Code, Article 2 of the Attorney-at-Law / [2] Article 681 of the Civil Code, Article 82 (2) of the Civil Procedure Act / [3] Articles 390 and 681 of the Civil Code

[1] Supreme Court Decision 95Da20775 delivered on December 12, 1997 (Gong1998Sang, 233) / [2] Supreme Court Decision 97Da1822 delivered on May 28, 1997 (Gong1997Ha, 1981)

Seoul High Court Decision 200Na14888 decided May 1, 200

(Attorney Cho Young-young et al., Counsel for the defendant-appellant)

1. All of the plaintiffs' claims are dismissed.

2. The costs of lawsuit are assessed against the plaintiffs.

The judgment of the court below that the defendant shall pay to the plaintiff Soviri-won 11,537,195 won, the plaintiff Soviri-ju and Soviri-young 7,691,463 won, and each of the above amounts at the rate of 5% per annum from June 25, 1994 to the date the judgment of this case is rendered, and 25% per annum from the next day to the date of full payment.

1. Basic facts

A. On November 25, 1990, with respect to a traffic accident caused by collision with a former owner of a road located in the Yeong-gu road and between Gunsan, the Plaintiffs, who are the children of the deceased deceased leap-ray, entrusted the Defendant, an attorney-at-law, claiming compensation for damages due to the traffic accident, and the Defendant represented the Jeonju District Court 93Gahap786 (i) for the damages by delegation.

(b) On April 7, 1994, the above court rendered a ruling of citing part of the plaintiffs' claims, and in relation to the lost income, there was an error in calculating the amount of 96 months from July 1, 1994 to June 30, 2002 "from July 1, 1994 to June 30, 2002" and less the amount of lost income.

C.However, as to the above decision, only the defendant limited liability company filed an appeal against the damages (i) case in Gwangju High Court 94Na2915, and the plaintiffs filed an incidental appeal against this case, but the above decision became final and conclusive by withdrawing the appeal thereafter by the above company.

(Reasons for Recognition: Facts that there is no dispute between the parties; Gap evidence 1, 6; Gap evidence 7-1 through 4; all the arguments

2. The plaintiffs' assertion and judgment

(a) A captain;

The plaintiffs are the cause of the claim in this case. ① The defendant accepted the above claim for damages as a legal professional, and at that time concluded a delegation contract with the plaintiffs to be entrusted with the appeal in connection with the claim for damages in this case. The defendant examined whether the judgment was erroneous or unreasonable, and provided guidance as to whether to file a lawsuit or not, even if the defendant did not accept the appeal, if the client wants to submit a petition of appeal or notify the appeal period clearly, so the client should not lose the opportunity to receive the judgment of the appellate court due to the lapse of the appeal period. Despite such duty of explanation and duty of care, the defendant violated such duty of explanation and duty of care so that he did not file an appeal within the statutory period and did not allow the plaintiffs to file an appeal within the statutory period. ② The same is to be recognized as 70% or more by the plaintiff's negligence from Kim Jong-young, the head of the office of the defendant's office, and the defendant argued that the above plaintiffs were not liable for damages due to the plaintiff's fault or error in the appellate court's judgment.

(b) Markets:

(1) Attorney's duty of care

In general, when an attorney-at-law, who is a legal expert, is delegated a legal representative by the client, he/she has a duty to faithfully perform his/her duties by acting in a lawsuit on the basis of professional legal knowledge and experience in performing the delegated duties in light of the public interest and expertise of his/her duties, thereby protecting the legitimate rights and interests of the client and preventing damage to the client. In addition, the client has a duty to explain the progress and result of the lawsuit to the necessary extent.

(2) Whether the Defendant violated the duty of care and explanation

(A)First, with respect to the fact that the defendant did not notify the client of the error in the judgment, which is the most controversial issue in this case, the defendant should first be examined about the defendant's duty of care and the scope of the duty to explain. However, as seen earlier, the defendant entrusted with the above claim for damages should have the client's duty to explain the progress of the above case and its result, etc., but further, the scope of the duty to explain should be examined in the case requested for a lawsuit. This is limited to the case where there is room for dispute even if there is a legal issue in the case requested for a lawsuit, and it is consistent with the court's decision or higher court's decision, and it is reasonable to view that the error in simple calculation or expression is excluded from the duty to explain unless there are special circumstances such as the defendant's prior knowledge of such circumstances within the period of appeal.

However, as in this case, the error in calculating the income period for calculating the actual income in the course of the decision is merely an error that can be sufficiently discovered if the decision is not a legal expert. Thus, it cannot be viewed that the attorney-at-law is included in the scope of giving explanation to the plaintiffs who are the client, and such error is very exceptional and the attorney-at-law requested in the lawsuit cannot normally be predicted. In addition, there is no evidence suggesting that the defendant found such error in the above claim for damages, and there is no evidence suggesting that the defendant discovered it in advance (the whole purport of the argument as stated in the evidence Nos. 2 and 3, evidence No. 7-2, and evidence No. 7-2, the plaintiffs did not know that such error was identical to the above decision, and it is difficult to find that the defendant did not know that the defendant violated the duty to explain it immediately after 2 months have passed since the decision was rendered, and that the defendant did not know that the defendant violated the duty to explain it within 195 days after the decision.

(b) Next, even if the attorney-at-law entrusted with the court of appeal did not accept the appeal at least, if the client so wishes, he shall not lose the opportunity to obtain the judgment of the court of appeal by submitting a petition of appeal or notifying the client clearly the period of appeal. However, as to the claim that the defendant violated such duty of care, the defendant shall be limited to the court of appeal, unless there are special circumstances, and thus the judgment of the court of appeal is terminated upon delivery of the petition of appeal to the attorney. Thus, in order for the attorney to submit the petition of appeal for appeal, he shall either conclude the appellate court agreement or have been delegated only to submit the petition of appeal. In this case, first of all, there is no dispute between the parties as to the fact that the defendant did not have been delegated to the appellate court by the plaintiffs, and there is no materials to recognize that the defendant has been delegated to submit the petition of appeal, so that the defendant shall submit a petition of appeal for the rights and interests

In addition, in this case, there is no evidence to prove that the defendant did not notify the plaintiffs of the appeal period, and even if the defendant did not notify the plaintiffs of the appeal period, so long as the appeal period has already been stipulated in the law, notifying the client cannot be readily concluded that the defendant violated the duty of care as the delegated attorney-at-law in the lawsuit, just because it merely means the benefit of the client, unless the appeal period is stipulated in the law. (This is a separate issue from that of the attorney-at-law who was entrusted with the lawsuit, by notifying the plaintiff of the error of the appeal period, thereby exceeding the appeal period). Therefore, this part of the plaintiffs' assertion is without merit.

(c)In addition, there is no evidence to prove that the plaintiff son did not appeal the expiration of the period of appeal even though the plaintiff son sent his/her intention to appeal to Kim Young-young, the chief of the office of the defendant office, and Kim Young-young had already filed an appeal according to his/her intention, since there is no evidence to prove that Kim Young-young had already filed an appeal to the above plaintiff at the end of the period of appeal, this part of the plaintiffs' assertion is without merit.

(D) In addition, in order to claim damages for a violation of the duty of care or duty of explanation of an attorney entrusted with a lawsuit, there should exist causation between such violation and the occurrence of damages. Thus, in full view of the whole purport of oral argument as to whether such causation can be acknowledged in this case, the investigation agency at that time investigated to the effect that the above traffic accident occurred with regard to the cause of the above traffic accident occurred due to the whole negligence of the owner of the son who was the deceased son who was the deceased son, and driven the vehicle in the process of the lawsuit. However, according to these factual relations, it can be acknowledged that the defendant was partly accepted the plaintiffs' claim by actively proving that the negligence of the son who was the driver of the cargo in the process of the lawsuit on behalf of the defendant caused the above traffic accident to coincide with that of the driver of the vehicle and the damages, and thus, it can be concluded that the plaintiffs were not liable to compensate for the damages as a whole by finding out the difference among the plaintiffs' damages as a result of the defendant's delegation of the above claim for damages and the plaintiffs' damages.

3. Conclusion

Thus, all of the plaintiffs' claims shall be dismissed as it is without merit.

Judges Kim Sang-chul