Plaintiff (Attorney Kim Jong-sik, Counsel for the plaintiff-appellant)

Defendant (Law Firm, Kim & Lee LLC, Attorneys Cho Young-chul et al., Counsel for defendant-appellant)

May 8, 2013

Seoul Central District Court Decision 2010Da143785 Decided January 6, 2011

Seoul Central District Court Decision 2011Na5096 Decided August 18, 2011

Supreme Court Decision 2011Da8005 Decided August 17, 2012

1. The plaintiff's appeal is dismissed.

2. The plaintiff shall bear the total costs of the lawsuit after filing the appeal.

The judgment of the first instance is revoked. The defendant shall pay to the plaintiff 24,329,133 won and 20% interest per annum from the next day of the service of the original copy of the payment order of this case to the day of complete payment (the plaintiff has become the party concerned and reduced the purport of the claim).

1. Basic facts

The following facts are either not disputed between the parties, or acknowledged by the whole purport of the pleadings in Gap evidence Nos. 1, 8, 12, 13, 41, and Eul evidence Nos. 1, 2, 6, 8 (including each number), and there is no counter-proof.

(a) Management, division, etc. of inherited property;

1) The deceased non-party 2 (hereinafter “the deceased”) died on April 30, 207, and 10 persons, including the deceased non-party 3, non-party 4, non-party 1 (the non-party in the judgment of the Supreme Court), the deceased non-party 5, the plaintiff 4, the plaintiff 5, the defendant, the defendant, and the non-party 6 (the death of September 8, 1996) of the deceased non-party 7, his children, and the non-party 8, 9, and 10 (hereinafter “the deceased non-party 6’s wife and children,” hereinafter) jointly inherited the deceased.

2) As the deceased’s inherited property, each real estate listed in the separate sheet 1 and each real estate share listed in the separate sheet 2, which was held in title by the deceased Nonparty 6. However, as to each real estate share listed in the separate sheet 2, the conciliation was concluded to the effect that “the deceased left the name of each real estate share listed in the separate sheet 2 as it is against the deceased Nonparty 6, and the deceased left the name of each real estate share as it is on March 22, 1999 between the deceased and the replacement heir (hereinafter “instant conciliation”). By December 31, 2009, the deceased used and profit-making each of the above real estate until December 31, 209, and paid a certain monthly living cost to the substitute heir (hereinafter “instant conciliation”). The deceased transferred each of the above real estate share to the substitute heir on December 31, 2009”).

3) On November 10, 2007, the Plaintiff, the Defendant, and the Nonparty 3, 4, and 5 (hereinafter “won, the Defendant, etc.”) agreed on November 10, 2007 that “The real estate located in Seoul and North Korea among the deceased’s inherited property shall be managed by Nonparty 5, and the real estate located in Daejeon shall be managed by the Plaintiff” (hereinafter “instant agreement”).

4) On December 13, 2007, 5 including the plaintiff and the defendant filed a claim for the adjudication on the division of inherited property against the non-party 1 and succession (the Seoul Family Court Decision 2007Rahap235) (hereinafter "the case on the division of inherited property of this case"). On January 15, 2010, the above court held that "the non-party 3 owns the remaining real estate except for the real estate listed in Paragraph 20 of the attached Table 1 among each real estate listed in the attached Table 1, and the non-party 3 paid to the non-party 4 56,856,824 won, the defendant 23,03,67 won, and the above money to the non-party 23,03,67 won and the above money were paid at a rate of 5% per annum from the day following the day this adjudication becomes final and conclusive to the day of complete payment." The above adjudication was finalized as is (the portion of inherited property of each real estate in the attached Table 2).

5) Meanwhile, the Plaintiff manages the real estate shares listed in the separate sheet 2 from the deceased’s death. From December 2009 to December 2009, the Plaintiff received 298,909,50 won in total as rent, and 26,647,50 won in total as management fee, and 8,541,864 won in total as public electricity charges, water supply charges, elevator charges, electricity charges, and repair charges.

6) Nonparty 3 and the Defendant filed a claim against the remaining co-inheritors, including the Plaintiff, for the division of the inherited property in the instant case of division of the inherited property, with the Seoul Family Court No. 2011Dhap7, against the Plaintiff, etc., for the division of the remaining inherited property. The appellate court [Seoul High Court 201B11B138, 2012 business 11 (merged)] decided on September 3, 2012: (a) based on the instant conciliation, from April 30, 2007 to December 31, 209, the date of the instant conciliation, from April 30, 2007 to December 31, 2009; (b) the management and profit-making interest (hereinafter “the instant right to management interest”) on each real estate share (excluding the real estate share in Paragraph 12) as the deceased’s inherited property; (c) the value of the inheritance was determined to be owned by the Defendant 325,57,000 won (hereinafter “the instant right to management interest”).

B. The costs of the lawsuit by the plaintiff and the defendant

1) The plaintiff, the defendant, and the non-party 5 (hereinafter "the plaintiff and the non-party 5") filed a complaint against the non-party 1 as embezzlement, and the party members filed a lawsuit against the non-party 1 as the plaintiff 2008Gahap529 against the non-party 1 (hereinafter "non-party 1 embezzlement case").

2) The instant case involving the division of inherited property and the embezzlement case involving Nonparty 1 to each law firm (hereinafter “Pacific”), including the Plaintiff, the Defendant, and three members, including the Defendant, were delegated to each of the law firms (hereinafter “Pacific”), and three members, including the Plaintiff, the Defendant, and the Defendant, under each delegation agreement, are jointly and severally liable to pay the remuneration and cost to the Pacific.

3) From November 15, 2007 to April 8, 2009, the Plaintiff paid 162,357,411 won (one thousand won among the embezzlement cases of Nonparty 1) to the Pacific as litigation costs, such as the Plaintiff’s name, Nonparty 11 (Plaintiff’s wife), and Nonparty 5’s account, including the case of division of inherited property and the attorney’s fees in the embezzlement case of Nonparty 1. On the other hand, the Defendant paid 48,081,748 won to the Pacific as litigation costs, including the case of division of inherited property and the attorney’s fees in the embezzlement case of Nonparty 1.

2. The plaintiff and the defendant's assertion

A. The plaintiff

1) Of the 162,357,411 won paid by the Plaintiff to the Pacific, the 11,05,000 won for the embezzlement case 15,00 won and three other 151,302,410 won for the remainder of the 151,302, and 410 won for the Defendant et al. Accordingly, from among the money paid by the Plaintiff to the Pacific, the part on which the Defendant was borne by the Defendant et al. is 33,945,482 won [=3,685,00 won x 1/3 x 1/3) + 30,260,482 won (= 151,302,410 x 1/5)]; and

2) Meanwhile, the part of the Plaintiff’s share out of KRW 48,081,748 paid by the Defendant to the Pacific is KRW 9,616,349 (= KRW 48,081,748) x 1/5).

3) Therefore, the Defendant is liable to pay to the Plaintiff KRW 24,329,133 (=3,945,482) -9,619,349) and delay damages.

B. Defendant

1) In accordance with the instant agreement, etc., the Plaintiff paid the litigation cost of the instant inherited property division case and Nonparty 1’s embezzlement case to the Pacific with rental income acquired in the course of managing the deceased’s inherited property, and thus, cannot claim reimbursement against the Defendant.

2) As the Defendant paid money exceeding the Defendant’s share of the costs of the instant inherited property division case and Nonparty 1’s embezzlement case to the Pacific Ocean, the Defendant has no obligation to claim reimbursement.

3) Even if the Plaintiff may claim reimbursement against the Defendant, and even if the Defendant has the obligation to claim reimbursement against the Defendant, the Defendant acquired the Plaintiff’s claim amounting to KRW 155,432,082 by the instant adjudication, which shall be offset against the amount equal to that of the Plaintiff’s claim for reimbursement against the Defendant.

3. Determination

A. Whether the plaintiff can claim the amount of compensation

1) The fact that there was no agreement between the plaintiff and five persons, including the plaintiff, that the plaintiff would spend the case of division of the inherited property of this case and the litigation costs of the embezzlement case with the rental income acquired in the course of managing the inherited property in accordance with the agreement, etc. of this case, and that there was no dispute between the plaintiff and the defendant. If there is such circumstance, even if the plaintiff disbursed the litigation costs of the case of division of the inherited property of this case and the embezzlement case with the rental income of the inherited property of this case, it may be deemed that the plaintiff could not claim for reimbursement against the defendant, who is the other delegate of the case of division of the inherited property of this case and the embezzlement case of the non-party 1, in light of the fact that the plaintiff could not claim for reimbursement of the rental income of this case, because it is an expenditure not complying with the intention of other co-inheritors (where the defendant has a claim against the plaintiff

2) In addition, as seen earlier, the Plaintiff transferred the litigation cost to the Pacific by means of each account in the name of the Plaintiff, Nonparty 11, and Nonparty 5 managed by the Plaintiff. Since all the money deposited in each of the above accounts is not considered as the leased income of the inherited property managed by the Plaintiff, the money transferred to the Pacific as the litigation cost cannot be deemed as the leased income of the inherited property managed by the Plaintiff.

3) This part of the Defendant’s assertion is without merit.

B. Whether the defendant's liability for compensation is attributable to

1) When one of the obligors jointly and severally liable is repaid or otherwise jointly discharged at his own expense, the portion of the other obligors’ joint and severally liable may be exercised (Article 425(1) of the Civil Act). The portion of the joint and several obligors’ joint and several liability is not a fixed amount, unlike the portion of the joint and several liability between the joint and several obligors, but a divided ratio, and even if there is a joint and several liability for less than the amount of the Intervenor’s joint and several liability, the right to indemnity shall accrue according to the share ratio. In light of these legal principles, even if the amount paid by the Defendant to the Pacific, exceeds the amount of the Defendant’s share out of the total costs of the case of division of the inherited property of this case and the case of Nonparty 1’s embezzlement, such circumstance alone does not constitute a lack of liability for indemnity against the Plaintiff (Supreme Court Decision 2007Da70155 Decided June 25, 2009 cited by the Defendant).

2) According to the above, the defendant is obligated to pay to the plaintiff the indemnity amount of KRW 24,329,13 [Article 24,329,13 [Article 33,945,482 [Article 11,05,00 won + 1/3 + 1,51,300 won + 1/3 + 151,302,410 x 1/5] - 9,616,349 won (==48,081,748 x 1/5)] and delay damages.

C. As to the conjunctive counterclaim

1) According to the purport and contents of the instant judgment, barring any other special circumstance, the Plaintiff appears to have a duty to pay KRW 155,432,082, which is the value at the time of the commencement of the inheritance of the right to use and benefit of the instant case, acquired by the Defendant under

2) As to this, the Plaintiff asserted to the effect that the Plaintiff spent the rental income as expenses for management of each real estate share and inheritance tax as shown in the attached Table 2, but there is no evidence to acknowledge it.

3) Ultimately, the Plaintiff’s claim for reimbursement amounting to KRW 24,329,133 and its delay damages against the Defendant.

It is reasonable to view that the Defendant’s claim of KRW 155,432,082 against the Plaintiff acquired through the instant trial was extinguished by the Defendant’s declaration of set-off with its automatic claim. This part of the Defendant’s assertion is with merit.

4. Conclusion

Therefore, the judgment of the court of first instance that dismissed the plaintiff's claim is justifiable, and it is so decided as per Disposition by the plaintiff.

[Attachment]

Judges Kim Jong-soo (Presiding Judge)