[1] Whether the principle of prohibition of disadvantageous alteration is applied to an immediate appeal against the determination of the amount of litigation costs (affirmative)

[2] Whether Article 415 of the Civil Procedure Act applies mutatis mutandis where an objection is filed against the determination of the amount of litigation costs by a judicial assistant officer (affirmative)

[3] Where only Party A raised an objection against the determination of the amount of litigation costs by a judicial assistant officer, the case holding that the court cannot render a decision to increase the amount of litigation costs disadvantageous to Party A

[1] Article 110(3) of the Civil Procedure Act provides that an immediate appeal may be filed against a final decision on the amount of litigation costs. Article 443 of the same Act provides that the provisions on an appeal concerning an appeal shall apply mutatis mutandis to a final decision on the amount of litigation costs. Thus, Article 415 of the Civil Procedure Act shall also apply mutatis mutandis to an immediate appeal against a final decision on the

[2] It is reasonable to interpret that Article 415 of the Civil Procedure Act shall apply mutatis mutandis to a case where an objection is filed against a decision on the determination of the amount of litigation costs by a judicial assistant officer pursuant to Article 443 of the Civil Procedure Act. Therefore, where an objection is filed against a decision on the determination of the amount of litigation costs by a judicial assistant officer, the judge in receipt of the case may change the original decision to the extent that the

[3] In a case where only A raised an objection against the determination of the amount of litigation costs by a judicial assistant, the court held that the court cannot render a decision to increase the amount of litigation costs disadvantageous to A

[1] Articles 110(3), 415, and 443 of the Civil Procedure Act / [2] Articles 415, 443, and 446 of the Civil Procedure Act, Article 54 of the Court Organization Act, Articles 2 and 4 of the Judicial Assistant Rules / [3] Articles 415, 443, and 446 of the Civil Procedure Act, Article 54 of the Court Organization Act, Articles 2 and 4 of the Rules of Judicial Assistants

Applicant 1 and 2 others

Respondent Corporation

Seoul Central District Court Order 2009Kao-3463 dated December 9, 2009 (Seoul Central District Court Order 2009Kao-3463 dated December 22, 2009)

The decision of the first instance shall be revoked.

The Seoul Central District Court Decision 2004Gahap86451, Seoul High Court 2006Na19780 (Transfer Prior to Return), Supreme Court Decision 2007Da14421, Seoul High Court 2008Na42050 (Redelivery), and Supreme Court Decision 2008Da64508 Decided 208, the respondent shall confirm that the amount of the litigation cost that the respondent has to pay to the applicant is KRW 5,31,094, respectively.

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

A. Progress of a case subject to determination of the amount of litigation costs

1) On December 16, 2005, the respondent filed a lawsuit against the applicant for a credit recovery claim against the Seoul Central District Court 2004Gahap86451. On December 16, 2005, the above court accepted part of the respondent's respective claims against the applicant, dismissed the remainder, and the 1/5 of the costs of the lawsuit is borne by the applicant and 4/5 is borne by the respondent.

2) Both the Claimant and the Respondent appealed to this Court No. 2006Na19780. On January 17, 2007, this Court rendered a decision that the Respondent’s remaining appeal and the Respondent’s appeal are dismissed, and 1/5 of the costs of the lawsuit are assessed against the Respondent, and 4/5 of the costs of the lawsuit are assessed against the Respondent.

3) Accordingly, both the applicants and the respondent appealed to the Supreme Court Decision 2007Da14421, and the Supreme Court reversed the part against the applicants in the appellate judgment on April 11, 2008, and remanded this part of the case to this court, and the appeal by the respondent is dismissed.

4) In the case of this court 2008Na42050, the second instance court after remanding the above Supreme Court decision, this court revoked the part of the first instance judgment against the applicants, dismissed all claims against the respondent corresponding to that part, dismissed all appeals against the respondent, and sentenced that the respondent bears the total costs of the lawsuit.

5) The Respondent appealed to the Supreme Court Decision 2008Da64508 Decided October 23, 2008. However, the Supreme Court dismissed the appeal on October 23, 2008 and sentenced that the costs of appeal are borne by the Respondent. The judgment became final and conclusive on the 27th of the same month.

(b) Process of the first instance decision;

1) The applicant filed an application for the determination of the amount of litigation costs in relation to each of the above merits, and the judicial assistant officers belonging to the first instance court decided November 11, 2009 that the respondent is KRW 5,311,094, respectively.

2) On December 1, 2009, the respondent filed an objection against the above decision. On December 9, 2009, the first instance court revoked the above decision of the judicial assistant as the device of re-do on December 9, 2009, and the first instance court decided that the respondent is the 5,601,094 won, as shown in the separate sheet of litigation costs.

2. Determination

A. Judgment on the respondent's assertion

The respondent asserts in the decision of the court of first instance that it is unreasonable for both parties to make the calculation of the attorney's fees for the appellate court of the above merits as the basis of the total value of the subject-matter of lawsuit in the scope of dissatisfaction. However, in the appellate court, the standard of calculating the value of the subject-matter of lawsuit is the scope of dissatisfaction by appeal unlike the first instance court (Article 25 of the Rules on the Stamps of Civil Procedure, etc.). In this case, the value of the subject-matter of lawsuit for calculating the attorney's fees should be the sum of the subject-matter of dissatisfaction by both parties

B. Ex officio determination

1) Article 110(3) of the Civil Procedure Act provides that an immediate appeal may be filed against a final decision on the amount of litigation costs. Article 443 of the same Act provides that the provisions on an appeal concerning an appeal shall apply mutatis mutandis to a final decision on the amount of litigation costs. Thus, Article 415 of the Civil Procedure Act shall also apply mutatis mutandis to an immediate appeal against a final decision on the

2) Meanwhile, the Court Organization Act amended by Act No. 7402 on March 24, 2005 and enforced on July 1, 2005 may have judicial assistant officers from the Supreme Court and each court (Paragraph 1). Of the affairs of the court in the determination procedure of litigation cost amount under the Civil Procedure Act, the judicial assistant officers may file an objection against the judge under the conditions as prescribed by the Supreme Court Regulations (Paragraph 2). Accordingly, the Court Regulation No. 1939 of June 3, 2005 provides that an objection against the judicial assistant officers may be filed under Article 54 of the Court Organization Act; Article 110 through 115 of the Civil Procedure Act provides that an objection against the judicial assistant officers shall be filed under Article 4 of the same Act; Article 54 of the same Act provides that an objection against the judicial assistant officers shall be filed under the conditions as prescribed by the Rules of the Supreme Court; Article 4 of the same Act provides that an objection against the judicial assistant officers shall be filed under the conditions as one of the affairs of the court for final proceedings (Paragraph 4).

As can be seen, Article 415 of the Civil Procedure Act shall apply mutatis mutandis to an objection filed by a judicial assistant officer in accordance with Article 443 of the Civil Procedure Act, in full view of the following: (a) the period for filing an objection against the determination of the amount of litigation costs by the judicial assistant officer is a peremptory term; (b) the period for filing an objection is excessive; (c) the provision on the procedure for filing an objection shall apply mutatis mutandis to the objection; and (d) the judge in receipt of the case shall be able to rectify the judgment pursuant to Article 446 of the Civil Procedure Act if the objection is deemed reasonable.

Therefore, if there is an objection against the determination of the amount of litigation costs by the judicial assistant officer, the judge in receipt of the judicial assistant officer or the case can change the original decision only to the extent that the objection is filed.

3) In the case of this case, although only the respondent raised an objection against the ruling of November 11, 2009 by the judicial assistant officer, the first instance court cancelled the above ruling of the judicial assistant officer and increased the cost of lawsuit to be repaid by the respondent to be disadvantageous to the respondent, it is deemed unlawful.

(c) Determination of litigation costs;

However, in this case where only the respondent raises an objection to the determination of the amount of litigation costs of a judicial assistant officer, the court of first instance cannot make a decision to increase the amount of litigation costs disadvantageous to the respondent. Thus, the amount of litigation costs that the respondent has to pay to the applicant is KRW 5,311,094, respectively, according to the determination of the amount of litigation costs of a judicial assistant officer on November 11, 2009.

3. Conclusion

Therefore, the decision of the first instance court shall be revoked, and the respondent shall determine the amount of the litigation cost to be repaid to the applicant as KRW 5,311,094, as per Disposition.

[Attachment] Statement of Costs of Litigation: omitted

Judges Lee Jong-ok (Presiding Judge)