2011 Gohap95 Damage compensation, etc.

DOO○ Corporation

Seoul Seocho-gu 00 Dong

United States of America, the representative director of the United States

Law Firm LLC et al., Counsel for the defendant-appellant

Attorney Jeong Il-sung, et al.

0000000000 council of occupants' representatives

Busan East-gu 00 Dong 0

Representative Lee 00

Attorney Park Ho-hoon, Counsel for the plaintiff-appellant

November 10, 201

January 5, 2012

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The defendant shall pay to the plaintiff 191,840,000 won with 20% interest per annum from the day following the day of service of the copy of the claim and the modification of the cause of the claim in this case to the day of complete payment.

1. Basic facts

A. The plaintiff is a specialized safety diagnosis institution under the Special Act on the Safety Control of Public Structures (hereinafter referred to as the "Safety Control of Public Structures"), and is a company that conducts safety diagnosis and inspection, structural design, repair and reinforcement business.

The defendant is an autonomous management organization consisting of occupants for the management of 1,149 households and attached facilities of 8 apartment units on the ground of ○○○ Dong-dong, Busan Metropolitan City.

B. On October 3, 2007, the Plaintiff entered into a facility safety inspection or precise safety diagnosis contract with the Defendant to investigate the defective, defective, and defective construction before the pre-use inspection, and defects after the pre-use inspection on the instant apartment (hereinafter “pre-use inspection service contract”) and agreed as follows.

Standard contract for safety inspection and precise safety diagnosis of a public structure (Evidence 3): At the time of submission of the report on payment of KRW 13,640,000 (including value-added tax): At the time of the contract (within five days) the intermediate payment of KRW 13,640,000 or the remaining payment of KRW 6,820,000 after the termination of the first instance trial: there is no cost of separate claim.

The time of litigation: 10% of the winning amount / Compensation for Damages (return of the cost of services for the restoration to the original state): Contract period (90 days after the contract is completed) : The performance plan for the medical examination; 1. The service duty contents 1. the defective, defective, defective, defective, defective, or defective construction, or defective construction, or defective construction (1,2,3,5,10 years after the inspection of the use of the facilities) . The investigation of defective and defective construction after the inspection of the use of the facilities (1, 2, 3,5,10 years) . The notification of the preparation of the defective repair and reinforcement of the defects to the construction company, the supervision company . 7. 2. Other matters, the technical support necessary for the agreement with the guarantee company or the litigation procedure (after the submission of the report) . The appointment of the counsel . 8. The plaintiff shall provide the technical assistance (1. 1. 1. 2. 3. 3. 3./ the consultation and consultation with the counsel 1. 1. 3.

C. On December 207, the Plaintiff investigated the defects before and after the inspection of the use of the instant apartment in accordance with the defect inspection service contract, and prepared and submitted to the Defendant a defect inspection report stating that the cost of KRW 14,979,456,987 will be incurred as the repair cost of the defects, etc. incurred in the instant apartment. In addition, around May 2008, the Plaintiff prepared and submitted to the Defendant a defect inspection report stating that the cost will be KRW 19,984,591,497 as the cost of voluntary design change of the Si construction and the restoration to the contract pharmaceutical.

D. On the other hand, on July 22, 2008, the defendant delegated ○○ Law Firm with the authority to act as an agent in the litigation concerning the claim for damages, etc. of the apartment in this case, and on the same day, agreed to receive technical advice from the plaintiff as follows (hereinafter referred to as the "technical advisory service contract").

Article 6 (Evidence No. 7) and Article 6 (Evidence No. 7) (1) of the Civil Procedure Agreement (Evidence No. 7) on Compensation for Damages caused by Defects, Defects, Defects, Non-Constructions, and Errors, the defendant shall pay to ○○○ Law Firm the amount of the judgment or the amount of the adjustment for contingent fees after the final judgment is sentenced or the adjustment is made as follows: 15% (Separate Value-Added Tax) of the amount of the winning or adjustment (the amount of the winning or adjustment shall be paid to ○○ Law Firm with the technical advisory fee of the plaintiff out of the above amount (the amount shall be the same as the technical advisory fee of the contract of October 3, 2007 between the plaintiff and the defendant).Article 13 (Inspection of Defects and Technical Assistance) and (1) of the Act on Compensation for Damages caused by Defects, Construction, etc. and technical assistance of the court shall be performed by the plaintiff under the responsibility of the law firm representative day. ② ② The plaintiff shall provide technical assistance to the defects in good faith and the contract between the plaintiff and the contract (including the contract).

E. On September 3, 2008, the defendant filed a warranty bond and a lawsuit claiming damages (2008Gahap86275) against ○○ Construction Co., Ltd. (hereinafter referred to as the "○○○ Construction") which constructed and sold the apartment in this case to the Seoul Central District Court (hereinafter referred to as the "○○ Construction"), and against ○○ Engineering Certified Architect's Office (hereinafter referred to as the "○○ Engineering"), which is the supervisor of the new apartment in this case, and a construction mutual aid association which guaranteed the warranty liability for the apartment in this case. On October 21, 2008, the above case was transferred to the Busan District Court (2008Gahap19662) (hereinafter referred to as the "the lawsuit claiming damages"). (f) In a lawsuit claiming damages, the appraiser’s ○○○, who was selected by the above court, calculated the total cost of external walls for defects in the apartment in this case as KRW 2,658,850,081 in all cases.

G. Around December 31, 2010, the Defendant notified the Plaintiff that the delegation contract was cancelled on the ground that it was objectively impossible to achieve the purpose of the delegation contract by making the law firm ○○ in good faith conduct the litigation agency business and faithfully perform the delegated business. Moreover, on the same day, the Defendant notified the Plaintiff that the Plaintiff would cancel the delegation contract on the ground that technical assistance, defect inspection and diagnosis were not faithfully performed, and that the total cost for repairing defects in the apartment of this case was calculated on the grounds that the Plaintiff’s appraisal of the court appraiser was considerably less than the cost for repairing defects in the defect investigation report submitted by the Plaintiff.

H. On October 20, 201, the Defendant was rendered a favorable judgment against the Defendant on October 20, 201, that “The construction of ○○○ was KRW 1.74 billion and delay damages from September 10, 2008; the construction mutual aid association KRW 1,477,76,549 and the delay damages from September 11, 2008, respectively, jointly and severally with the construction of Dodo; and that “The construction mutual aid association shall pay the delay damages from September 11, 2008.”

[Ground of Recognition] Facts without dispute, Gap evidence 1 through 5, each statement of evidence of Nos. 7 through 14 (including each number), the purport of the whole pleadings

2. The major contents of the relevant Acts and subordinate statutes are as shown in the attached Form, including the safety management of facilities and its Enforcement Decree, safety inspection and precise safety diagnosis standards (calculated cost) (No. 2003-195 (Revised August 2, 2003) related to the issues of the case;

3. The parties' assertion

A. The plaintiff's assertion

1) At the time of the contract for inspection of defects and technical advisory services, the Plaintiff agreed 10% of the winning price for the technical advisory services related to the claim for damages with the Defendant (hereinafter referred to as the “instant agreement”). The Plaintiff investigated the defects that occurred in the instant apartment in accordance with the instant agreement, and conducted technical assistance, such as the application for appraisal, re-verification, and the preparation of the application for fact-finding, etc. necessary for the claim for damages for two years and five months from July 22, 2008 to December 30, 2010.

2) Meanwhile, as seen earlier, the Defendant was sentenced to a favorable judgment equivalent to KRW 1.74 billion for ○○ Construction in a damages lawsuit. As such, the Defendant is obligated to pay to the Plaintiff technical advisory fees of KRW 191,840,00 equivalent to 10% of the winning amount pursuant to the instant agreement (=1.74 billion + value-added tax + KRW 174 billion) x 10%.

B. Defendant’s assertion

The agreement of this case is a violation of Article 109 subparagraph 1 of the Attorney-at-Law Act, which strictly prohibits a person, other than an attorney-at-law, to conduct appraisal, representation, legal counseling, preparation of legal documents, and other legal affairs in connection with a litigation case, and is thus invalid as it constitutes

4. The judgment of this Court

A. Article 109 (1) of the Attorney-at-Law Act provides that "any person, other than an attorney-at-law, who receives or promises to receive money, valuables, entertainment or other benefits, or who, in return for providing or promising to provide it to a third party, shall be punished by imprisonment with prison labor for not more than seven years or by a fine not exceeding 50 million won."

In general, an attorney-at-law is engaged in legal affairs widely in the mission of protecting fundamental human rights and realizing social justice. As such, the Attorney-at-law Act strictly limits the attorney-at-law's qualification and takes all necessary measures, such as ensuring that a person who is not qualified and not in compliance with the law does not intervene in another person's legal cases in order to obtain money, valuables, or other benefits, thereby impairing the interests of the parties or other interested persons, hindering the fairness and smooth operation of legal life, and impairing the legal order. Thus, the Attorney-at-law Act prohibits the handling of legal affairs by a person who is not a lawyer as above.

2) In light of the purport of Article 109 subparagraph 1 of the Attorney-at-Law Act, “agent” under the above Act includes not only the act of dealing with a legal case under the name of his/her agent, but also the act of using legal knowledge on behalf of himself/herself, or of doing so on behalf of himself/herself on behalf of himself/herself, or of doing so on behalf of himself/herself only in the external form, and thus, the act of doing so. In addition, the above Article 109 subparagraph 1 of the Attorney-at-Law Act includes a case where a juristic act aimed at acquiring the benefits stipulated in the above Act as a mandatory law has the anti-social nature, and thus, judicial effect is denied (see, e.g., Supreme Court Decisions 2009Da9843, Feb. 25, 2010; 2002Do2725, Nov. 13, 2002).

(b) Fact of recognition;

However, the following facts are acknowledged in full view of the evidence and the purport of the entire pleadings as stated above.

1) The Act on the Safety Control of Public Structures and the Enforcement Decree thereof strictly regulates the meaning of safety diagnosis and precise safety diagnosis, the timing for conducting safety diagnosis, the qualifications of those who can perform safety diagnosis, the consideration for safety inspection and precise safety diagnosis, and the registration of the specialized

2) Under the standards for the calculation of costs for safety inspections and precise safety diagnosis, the sum of direct personnel expenses, expenses, royalties, direct expenses, and expenses incurred in conducting the business, calculated on the basis of the number of persons required for conducting the inspections and diagnosis, shall be calculated on the basis of the “fixed-amount calculation method” used in calculating the cost for conducting the business. The selective and occupational expenses shall also be calculated on the basis of the “fixed-amount calculation

3) On October 3, 2007, prior to the Defendant’s appointment of the attorney, the Plaintiff entered into a defect investigation service contract with the Defendant, and included “technical support (after submitting a report) necessary for the procedures of construction work, guarantee company or lawsuit beyond the scope of safety inspection and precise safety diagnosis as stipulated in the Public Structures Safety Control Act” in the scope of duties. In particular, in the case of a lawsuit, the Plaintiff took full charge of attorney’s advice and technical consultation until the judgment of the first instance is rendered, and comprehensively provided technical support necessary for the re-preparation of the litigation procedures, such as the preparation of a written complaint, examination of witness, response to fact inquiry, and appraisal report.

4) In addition, technical assistance is not a fixed amount calculated by the “actual appropriation” but an amount equivalent to a certain percentage of winning amount, such as attorney fees.

5) While the success fee of the law firm representative, which is an attorney ultimately receiving the defendant's winning in a lawsuit for damages, is only 5% of the winning amount, the plaintiff's technical advisory fee reaches 2 times the winning amount or 10% of the winning amount.

6) In the course of a lawsuit seeking damages, the Plaintiff: (a) drafted and submitted to the Defendant or ○○○ Law Firm a fact-finding request; (b) written a supplementary statement; (c) a supplementary statement; and (d) an ex officio reply to the appraiser; and (c) submitted the said written request prepared by the Plaintiff to the

7) As above, the Plaintiff was involved in the entire progress of the damages suit, the key point of which is the appraisal of apartment defects, such as preparing a litigation document to be submitted to a court beyond simple technical advice, such as the preparation of a defect investigation report basically necessary for the lawsuit, and requesting a request for appraisal commission, fact-finding inquiry request, or a request for witness request.

According to the above facts of recognition, the technical advisory service contract between the plaintiff and the defendant appears to be a contract that takes the same effect as the actual act of representation without taking the form of representation because the plaintiff, not an attorney-at-law, takes the lead in the process of the case under the name of technical assistance in the lawsuit for damages, and actually takes the same effect as the act of representation, by leading the defendant or the law firm ○○, which is the attorney-at-law. The contract of this case on remuneration is a legal act aimed at acquiring profits with the winning price in the lawsuit, and has anti-social character in violation of the legislative intent of Article 109, Paragraph 1 of the Attorney-at-

5. Conclusion

Therefore, the plaintiff's claim based on the premise that the agreement of this case is valid is without merit, and it is so decided as per Disposition.

The presiding judge and the associate judge;

Judges Kim Young-young

Judges Shin Jae-won