2014Da53158 Claims

Law Firm A (former: Law Firm A)

B apartment council of occupants' representatives

Seoul Southern District Court Decision 2013Na10685 Decided June 26, 2014

October 15, 2015

The judgment below is reversed, and the case is remanded to Seoul Southern District Court Panel Division.

The grounds of appeal are examined.

1. In the case of a juristic act to which an additional officer attached, if it is reasonable to deem that the fact indicated in the additional officer does not occur, it shall be deemed as a condition where it is deemed that the additional officer does not perform his/her obligation, and if it is reasonable to deem that the occurrence of the indicated fact should be performed not only when the indicated fact occurred but also when it becomes final and conclusive that the objection does not occur, it shall be deemed as an indefinite time limit. In addition, in cases where certain facts are attached to the repayment of the obligation already borne, barring any special circumstance, it shall be deemed as postponed the time limit and the time limit shall expire when the fact has occurred or it becomes final and conclusive that the occurrence has not occurred (see, e.g., Supreme Court Decision 2003Da242

Meanwhile, a juristic act ought to be reasonably interpreted in accordance with logical and empirical rules by comprehensively taking into account the contents of the juristic act, the motive and background leading up to the juristic act, the purpose to be achieved by the juristic act, the genuine intent of the parties, etc. in a case where there is an issue of interpretation of the parties in view of the difference between the parties as to the interpretation of the juristic act. (See, e.g., Supreme Court Decisions 94Da1142, Apr. 29, 1994; 201Da5134, Dec. 27, 2011). Furthermore, a waiver or mitigation of liability or liability does not necessarily require an express expression of intent, but it should be recognized even in a case where it can be deemed as a waiver or mitigation of liability or liability by a creditor’s act or the interpretation of an obligee’s expression of intent. However, for such recognition, it should be determined to strictly apply the interpretation of an obligee’s act or declaration of intent in accordance with the content of the pertinent legal relationship (see, e.g., Supreme Court Decision 20105Da4054.

2. According to the reasoning of the first instance judgment cited by the lower court and the evidence duly admitted, the following facts are revealed.

A. (1) On October 4, 2010, the Defendant (the representative at that time is C) entered into an agreement with the Plaintiff on the delegation of litigation affairs to the Plaintiff in the case of claiming damages due to defective construction, etc. of the Plaintiff and B apartment (hereinafter “instant apartment”) (hereinafter “instant delegation agreement”). On October 21, 2010, the Defendant’s general meeting of members of the council of occupants’ representatives appointed the Plaintiff as the legal representative of the said lawsuit seeking damages.

(2) Meanwhile, Article 3 of the instant delegation contract (Evidence A No. 1-1) provides that “the agent shall pay the safety diagnosis expenses, stamp dues, service charges, court appraisal fees, and other litigation expenses necessary for the management of the delegated affairs, and then deducts the actual expenses.” Article 5(2) provides that “The amount of judgment or adjustment shall be paid to the mandator after deducting the amount of the contingent fees provided in paragraph (1) and the cost of litigation provided in Article 3 from the amount of the contingent fees provided in Article 3.”

B. (1) The Plaintiff entered into a safety inspection contract with N Co., Ltd. on October 4, 2010 pursuant to Article 3 of the instant delegation contract, and paid KRW 77 million to N Co., Ltd. on October 19, 2010.

(2) On December 10, 2010, N Co., Ltd. conducted the diagnosis and defect investigation of the apartment in advance, and prepared the report and submitted it to the Plaintiff and the Defendant on December 10, 2010. (1) In order to initiate a lawsuit seeking damages under the instant delegation contract, the Plaintiff demanded the Defendant to continue to provide more than 2/3 of the sectional owners under Article 4 of the instant delegation agreement and relevant materials necessary for the lawsuit, but the Defendant did not deliver it to the Plaintiff.

(2) On March 9, 2012, the Plaintiff terminated the instant delegation contract on the ground of the violation of the duty to provide data under the instant delegation contract, and notified the Defendant of the payment of the cost of the instant safety diagnosis and the interest thereon.

3. We examine the above facts in light of the legal principles as seen earlier.

A. 77,00,000 won for safety inspection expenses paid by the Plaintiff as a mandatary is necessary expenses incurred in the management of the delegated affairs of this case, and the Plaintiff is deemed to have a right to claim reimbursement of expenses under Article 688(1) of the Civil Act against the Defendant as the mandator.

In addition, Article 3 of the delegation contract of this case provides that "the mandatory pays the costs of the lawsuit, such as safety diagnosis costs, and then deducts the actual expenses thereafter," and Article 5 (2) provides that "the mandatory shall pay the balance remaining after deducting the contingent fees prescribed in paragraph (1) and all expenses of the substitute payment, such as the costs of the lawsuit under Article 3, from the judgment fees or mediation fees received by the mandatory." The above provision appears to have the purport of the delegation contract of this case is to first bear the burden of the plaintiff on the premise of defendant amam and to deduct the costs of the lawsuit from the winning money after the completion of the lawsuit. In addition, there is no other obvious circumstance to deem that there was an agreement between the plaintiff and the defendant that the plaintiff entirely bears the risk of the result of the lawsuit, such as imposing the costs of the lawsuit, if the defendant lost between the plaintiff and the defendant

Ultimately, barring any other special circumstances, the agreement between the Plaintiff and the Defendant regarding the above litigation costs is not a settlement agreement under the condition that the Defendant is liable for reimbursement of the litigation costs, but rather a settlement agreement under the premise that the Defendant is liable for reimbursement of the litigation costs, and it is reasonable to interpret that the arrival of an uncertain fact, “the receipt of the judgment or the amount of liquidation upon the termination of the lawsuit,” which is the final due date, is determined as the due date for payment. Although the interests of the Defendant and the sectional owners may vary depending on the progress and result of the lawsuit as pointed out by the lower court, it is insufficient to interpret the agreement differently with only such circumstances in this case where the resolution for appointment of the Plaintiff’s attorney under the delegation agreement was made by the Defendant’s general meeting of members of the council of occupants’ representatives

B. However, inasmuch as the delegation contract of this case is terminated on the ground of the Defendant’s breach of duty to provide data under the delegation contract of this case and the Plaintiff becomes final and conclusive as unable to receive the judgment amount or the adjustment amount, barring any other special circumstances, the Defendant’s repayment period for the Defendant’s obligation to pay the litigation costs shall have arrived. Accordingly, there is sufficient room to deem that the Plaintiff may claim KRW 77 million for the safety inspection expenses incurred in performing the delegated affairs of this case to the Defendant under Article 688(1)

4. Nevertheless, the lower court erred by misapprehending the legal doctrine regarding the interpretation of the delegation contract of this case and thus, deemed that the costs of the lawsuit, such as safety diagnosis costs, were to be paid only by the method of deducting the costs of the lawsuit from the judgment amount or the liquidation amount, and, on that premise, charged the Plaintiff with the Plaintiff’s primary claim claiming safety diagnosis costs in large payment under Article 3 of the delegation contract of this case. Accordingly, the lower court erred by misapprehending the legal doctrine regarding the interpretation and omission of legal act, or by exceeding the bounds of the principle of free evaluation of evidence in violation of logical

5. Therefore, without examining the remaining grounds of appeal, we reverse the judgment below, and remand the case to the court below for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim In-bok, Counsel for the defendant

Justices Kim In-bok, Counsel for the defendant

Justices Park Young-young

Justices Kim Jong-il