[1] Whether the power of a judicial assistant officer as to the pertinent disposition is terminated after the case of raising an objection against the decision of a judicial assistant officer is forwarded to the judge (affirmative)

[2] The case holding that a correction decision made by a judicial assistant officer after a judge's authorization decision was null and void with respect to an objection case against the determination of the amount of litigation costs by the judicial assistant officer

[3] Whether the appellate court can correct the decision (affirmative with qualification)

[4] Whether the principle of prohibition of disadvantageous alteration is applied to a case where the appellate court corrects an obvious error in the first instance court's decision through correction (negative)

[1] After the party's objection has been raised against the decision of the judicial assistant officer, and the judicial assistant officer has sent the case of objection to the judge, the judge may dismiss the objection, or approve or rectify the disposition of the judicial assistant officer, and the system to remand the case to the judicial assistant officer is not in place under our legislation. Thus, the power of the judicial assistant officer as to the relevant disposition is terminated by the forwarding of the case of objection.

[2] In a case where a party filed an objection to the determination of the amount of litigation costs, and the court of first instance decided to authorize the above determination by the judicial assistant, but the judicial assistant decided to correct the obvious error in the determination of the amount of litigation costs in the first instance court after the first instance court was sent to the appellate court, the case holding that the above correction decision was null and void as it was made after the transmission of the objection case

[3] Although the court which made the pertinent decision, in principle, makes the correction of the decision, in case where the pertinent case is pending in the appellate court due to the filing of an appeal, the original of the relevant decision is bound to be bound in the appellate records and sent to the appellate court, so the appellate court which has the original of the decision and the records of litigation are also entitled to make the correction decision, and it

[4] The principle of prohibition of disadvantageous alteration in civil procedure is that the principle of disposition authority that the court is unable to make a decision on the matters not applied by the parties concerned is related to the scope of the appeal trial. According to this, the appellant can examine and determine only those matters requested by the appellant through an appeal within the scope of the objection. Thus, the appellate court cannot make a decision more unfavorable than the first instance court's decision. However, it is reasonable to deem that the appellate court's correction through correction of obvious errors in the first instance court's decision does not affect the appellant's favorable or unfavorable outcome or exercise of the right of appeal, as it does not affect the appellant's exercise of the right of appeal.

[1] Articles 2 and 4 of the Rules on Judicial Assistants / [2] Article 110 of the Civil Procedure Act, Articles 2 and 4 of the Rules on Judicial Assistants / [3] Article 211 of the Civil Procedure Act / [4] Articles 211 and 415 of the Civil Procedure Act

[3] Supreme Court Order 91Ma748 delivered on January 29, 1992 (Gong1992, 1263) / [4] Supreme Court Decision 80Da284 delivered on November 11, 1980

Applicant

Construction Financial Cooperative

Chuncheon District Court Order 2008Kacal57 dated August 12, 2009

1. The respondent's appeal is dismissed.

2. The order of the decision of August 12, 2009 on August 12, 2009 with respect to the case of confirmation of litigation costs between the above parties was corrected to the effect that “the amount of litigation costs that the respondent has to pay to the applicant by the decision of the Chuncheon District Court, 2006Kadan3594, Seoul High Court 2008Na13588 is KRW 4,909,963.”

1. Basic facts (as evidenced by the records);

According to the records, each of the following facts is proved:

(a) Lawsuit on the merits of the first instance;

1) The Respondent and the Claimant filed a lawsuit claiming damages against the Respondent and the Appellate Construction Co., Ltd. (former trade name before the alteration: hereinafter “Ucheon District Court 2006Kadan3594, the Respondent and the company other than the Claimant filed a lawsuit claiming damages against each company (hereinafter “Ucheoncheon District Court 2006Kadan3594) to pay 105,965,000 won per each and its delay damages.

2) On November 28, 2007, the above court rendered a judgment to the effect that "1. 1. applicant, non-applicant company 84,922,252, and delay damages therefor shall be paid jointly with the company other than the applicant, and the respondent shall be jointly and severally with the company other than the applicant and the company other than the applicant, and the remaining claims of the applicant shall be dismissed on February 2, 200, respectively. 3. Litigation costs shall be five minutes for the part arising between the applicant and the company other than the applicant, the remainder shall be borne by the applicant, the non-applicant, and the remainder shall be borne by the non-applicant, five minutes for the part arising between the applicant and the respondent, and the remainder shall be borne by the respondent, respectively."

(b) Lawsuit on the merits of the second instance;

On the above judgment, the respondent and the non-applicant company appealed to Seoul High Court 2008Na13588 with respect to each part against which they lost, but on September 18, 2008, all appeals were dismissed, the judgment was rendered that the respondent and the non-applicant company should bear the costs of appeal, and the above judgment became final and conclusive around that time.

(c) Determination of the amount of litigation costs in the first instance;

1) On March 4, 2009, the applicant filed a defect in the application for the determination of the amount of litigation costs of this case, the judicial assistant officer of the first instance court, who belongs to the court of first instance, rendered a final decision that the amount of litigation costs to be repaid by the respondent is KRW 4,786,749, and the amount of litigation costs to be repaid by the company other than the applicant, KRW 9,44,916. The respondent filed an immediate appeal (Objection), and the first instance court rendered a decision of the first instance court that approves the above decision of the judicial assistant on August 12, 2009.

2) Meanwhile, on September 3, 2009, after the decision of the first instance court was sent to the appellate court, the judicial assistant officer of the first instance court rendered a decision to correct the original decision with the purport that the Respondent’s amount of litigation cost to be repaid is KRW 4,909,363, and the amount of litigation cost to be repaid by the non-applicant company is KRW 8,759,979, respectively.

2. The assertion and judgment

A. Judgment on the respondent's assertion

1) The respondent asserts that he/she has paid litigation costs, such as attorney fees, in each of the above merits, and that the first instance court’s decision did not consider such circumstances and calculated the amount of litigation costs.

2) On the other hand, there is no evidence to prove that the respondent has paid the litigation costs in each of the above merits. Rather, according to the records, the respondent and the non-applicant companies appointed a lawyer landscaping decoration in the lawsuit on the merits of the first instance trial and a lawyer limited in the lawsuit on the merits of the second instance trial as a joint attorney, but the attorney fees are proved to have been paid by the non-applicant companies independently. Thus, the above argument by the respondent is rejected.

B. Ex officio determination

1) After the party's objection has been raised against the decision of the judicial assistant, and the judicial assistant has sent the case of objection to the judge, the judge may dismiss the objection, or approve or rectify the disposition of the judicial assistant, and the system to remand the case to the judicial assistant is not in place under our legislation. Thus, the power of the judicial assistant in relation to the relevant disposition shall be terminated by the forwarding of the case of objection.

As to the instant case, the public health unit and the judicial assistant officers belonging to the first instance court were to correct obvious errors in the final decision of the amount of litigation costs in the first instance court. However, the final decision of the correction was made after the final decision of the judge's authorization on the instant case was made in light of the legal principles as seen earlier, the final decision of the court below constitutes null and void as the decision of the non-authorized person.

2) Meanwhile, in principle, the court which made the pertinent decision, but where the relevant case is pending in the appellate court due to the filing of an appeal, the original of the relevant decision shall be bound into the written appeal records and sent to the appellate court. Thus, the appellate court, which has the original of the decision and the records of litigation, may also make a correction decision as to the relevant decision and the part pending in the appellate court (see Supreme Court Order 91Ma748 delivered on January 29, 192).

Based on this, the decision of the first instance court that approved the decision of the judicial assistant officer that ordered the respondent to repay KRW 4,786,749 to the applicant as the amount of litigation costs is obvious that there is an error in the calculation of the amount in the calculation of the amount in light of the statement of the cost of lawsuit in the attached Form. If the calculation is made, the respondent would be 4,909,963 won, such as the statement of the cost of lawsuit in the attached Form.

3) However, if this Court revises ex officio the amount of the litigation cost that the respondent has to pay to the applicant as above, it is higher than the amount set forth in the first instance decision prior to the correction. Therefore, there is a question whether the above correction of the decision in this case, which the respondent appealed only, is contrary to the principle of prohibition of disadvantageous alteration.

The principle of prohibition of disadvantageous change in civil procedure is that the principle of disposition authority that the court is unable to make a decision on the matters not applied by the parties is related to the scope of the appellate trial, and according to this, only those filed by the appellant by an appeal can be deliberated and determined within the scope of the appeal (Article 415 of the Civil Procedure Act). Thus, the appellate court may not make a decision more unfavorable than the first instance judgment to the appellant.

However, it is reasonable to view that the principle of prohibition of disadvantageous alteration does not apply to such a case, since the appellate court’s correction of obvious errors in the first instance court’s decision does not affect the appellant’s favorable or unfavorable outcome or the exercise of the right to appeal, because it does not affect the appellant’s exercise of the right to appeal (see Supreme Court Decision 80Da284 delivered on November 11, 1980).

3. Conclusion

Therefore, the part arising between the applicant and the respondent in the disposition of the first instance court shall be corrected to the effect that “the respondent shall confirm that the amount of the litigation cost to be repaid to the applicant by the judgment on each merits is KRW 4,909,963,” and the revised decision on the first instance is justifiable, and the appeal by the applicant is dismissed as it is without merit. It is so decided as per Disposition.

[Attachment] Statement of Costs of Litigation: omitted

Judges Lee Jong-ok (Presiding Judge)