Applicant (Appellant, Law Firm Ho & Law, Attorney Woo-hwan, Counsel for defendant-appellant)

Respondent 1 and one other

1. The costs of the lawsuit in the Jeonju District Court 2019Kahap1047 between the claimant and the respondent shall be borne by the respondent, and the costs of the lawsuit in the Gwangju High Court 2019Ra1014 shall be borne by the respondent respectively.

2. At the Jeonju District Court Decision 2019Kahap1047, the Respondents shall fix that the amount of the cost of the lawsuit to be repaid to the applicant is KRW 3,274,095, respectively.

1. Basic facts

The following facts shall be substantiated by the record:

A. On May 31, 2012, the respondent entered into a partnership agreement with the applicant’s spouse Nonparty 1 and the applicant’s “(trade name omitted)” and jointly operated the above dental services. Nonparty 1, as the president of the above dental branch, was in charge of the administrative affairs of the hospital, and the applicant was also directly involved in the management of the instant dental services.

B. However, there was a dispute between the applicant and the respondent regarding the operation of dental services. The second floor of the building of the above dental hospital; the third floor of the same building; the third floor of the respondent; the fifth floor of the same building; and the respondent 2 independently operated dental services on the five floors of the same building; and the first floor in charge of the duties of receiving patients was 1/3 shares, respectively.

C. On April 25, 2019, the respondent asserted that non-applicant 1 violated the agreement that the non-applicant 1 would distribute a new patient who was within the dental hospital to the respondent and non-applicant 1 in order, and that the dental business right is infringed by posting a notice that slanders the respondent on the dental hospital building (hereinafter “instant provisional disposition”). On April 25, 2019, the respondent and non-applicant 1 filed an application for a provisional disposition seeking the prohibition of interference with business (hereinafter “the previous Jeju District Court 2019Kahap1047).

D. On June 27, 2019, the first instance court dismissed the application for provisional disposition of this case.

E. On July 4, 2019, the respondent filed an immediate appeal against the decision of the first instance court on July 4, 2019 (Seoul High Court 2019Ra1014). However, in the appellate court (Seoul High Court 2019Ra1014), the respondent agreed with 1 other than the applicant on September 18, 2019 before the date of pleading or examination was set, and the application for provisional disposition of this case was withdrawn on February 26, 2020.

2. Determination:

(a) Costs of lawsuit;

In a case where a lawsuit is terminated due to withdrawal of the lawsuit, the court shall, by its ruling, determine the amount of litigation costs pursuant to Article 114(1) of the Civil Procedure Act and order the obligor to bear them. In this case, pursuant to Article 114(2) of the Civil Procedure Act, the court may determine, at its discretion, a person liable for litigation costs and their shares, by comprehensively taking account of the various circumstances, including the details of withdrawal of the lawsuit and the details of each party’s litigation, pursuant to Articles 98 through 103 of the same Act (see Supreme Court Order 2007Ma27, May 23, 2007

In light of the following circumstances as to the contents of the application for provisional disposition of this case and the decision of the court of first instance and the process of withdrawal thereof, the purport of the application for provisional disposition of this case was that the applicant and the non-applicant 1 were prohibited from distributing new patients in violation of the agreement, posting all materials that infringe on the respondent's business rights, etc., and the court of first instance dismissed all the application for provisional disposition of this case on the ground that the respondent's explanation of the preserved rights claimed by the respondent is not sufficient. While the appeal is pending, the respondent agreed with the non-applicant 1 to leave the building of the dental hospital and the respondent's withdrawal has no benefit of maintaining the application for provisional disposition of this case, and the costs of lawsuit of the second instance should be borne by the respondent, and according to the proviso of Article 3 (2) of the Rules on the Inclusion of Costs of Litigation in the case of the case of the non-applicant 1, the costs of lawsuit of this case are not different from the attorney's fees to the court of first instance prior to the appeal of this case.

(b) Determination of litigation costs;

The amount of the litigation cost that the respondent has to pay to the applicant with respect to the case of Jeonju District Court 2019Kahap1047 is as shown in the separate sheet according to Article 3(1) and (2) of the Rules on the Inclusion of Attorney Fees into Litigation Costs.

The Claimant asserted that he paid KRW 1,100,00 as attorney fees of the first instance court (i.e., March 13, 2019 + KRW 5,500,000 as attorney fees of the law firm + KRW 25,500,000, May 15, 2019). However, the time when the Claimant paid KRW 5,500,000 to the law firm headship is prior to the filing of the instant provisional disposition. The Claimant’s filing of the instant provisional disposition with the Respondent’s filing of the instant provisional disposition, and the Claimant’s filing of the civil principal case related to the Respondent’s filing of the instant provisional disposition (former District Court Decision 2019Da2116, 2019Da27514, KRW 2390, KRW 2019, KRW 3485,200, KRW 200,000, the filing of the instant provisional disposition and its relevance to each of the instant provisional disposition are difficult.

3. Conclusion

Therefore, it is so decided as per Disposition.

(attached Form omitted)

Judges Ohyeong-do (Presiding Judge)