Republic of Korea

Freeboard Kim

Suwon District Court Order 2005KaKag738 dated September 15, 2005

The appeal of this case is dismissed.

1.Basics

The record reveals the following facts.

A. The applicant (the other party, hereinafter referred to as the "applicant") filed a lawsuit claiming unjust enrichment, etc. against the respondent (the respondent; hereinafter referred to as the "applicant") on the ground that the respondent occupies the forest and field of the applicant without permission by the respondent (the respondent; hereinafter referred to as the "applicant"), and the respondent suffered emotional distress due to the applicant, and the respondent filed a counterclaim seeking the payment of consolation money of KRW 60 million (202Gada64094 (Counterclaim)).

B. On June 8, 2004, the above court rendered a judgment that "the defendant shall pay to the plaintiff 579,000 won and its delay damages, and shall pay the amount at the rate of KRW 2,081 per month from April 1, 2003 to the expiration date or loss of ownership of 61m2,081m2 among the 151m2 in the Yacheon-gun, Gacheon-gun, Gacheon-gun, Gacheon-gun, Gacheon-gun, Gacheon-gun, Gacheon-gun, Gacheon-gun, Gacheon-gun, Gacheon-do

C. The respondent appealed to the Seoul High Court Decision 2004Na44010 (the main lawsuit), 2004Na44027 (Counterclaim), but the above court rendered a decision on December 29, 2004 that "the defendant among the judgment of the first instance, pays to the plaintiff KRW 190,531 and its delay damages, and the part against the defendant exceeding the amount ordered to pay the amount by the same monthly rate for the same period as to the above possession shall be revoked. The plaintiff's claim is dismissed. The defendant's remaining appeal is dismissed. The plaintiff's remaining appeal is dismissed. The total costs of the lawsuit are to be borne by the plaintiff (applicant) and by the defendant (applicant)." The above decision became final and conclusive on February 2, 2005.

D. The court below determined the amount of the litigation cost to be paid by the respondent to the applicant according to the above judgment on the merits as KRW 1,090,00, which is recognized by Article 3 of the Rules on the Inclusion of Litigation Costs in the First Instance; KRW 9,500, which is recognized by the Respondent; KRW 56,700, the service fee; KRW 1,223,60, the service fee; KRW 1,223,60, the service fee; KRW 2,750, the submission cost; KRW 2,960, the submission cost; KRW 2,510,510, which is the day of pleading; and KRW 35,00,000, which is the day of pleading; and KRW 2,510,510, which is the day of pleading.

2. Summary of and judgment on the grounds of appeal

The respondent asserts that since the applicant's claim for the determination of the amount of litigation costs of this case is an anti-social claim seeking property interest unfairly by pressureing the respondent illegally, the respondent should be dismissed by the invalidation of Article 103, Article 104, and Article 137 of the Civil Code.

However, the procedure for determining the amount of litigation costs is the procedure to determine the number of litigation costs to be paid according to the judgment in the case where a judgment on the principal lawsuit including the part concerning the burden of litigation costs against the respondent has become final and conclusive pursuant to Article 110 of the Civil Procedure Act. Thus, there is no evidence to regard the application for the determination of the amount of litigation costs of this case recognized as the applicant's right under the provisions of the Civil Procedure Act as a claim against the respondent. In the procedure for determining the amount of litigation costs of this case, the existence of the obligation for repayment itself cannot be deliberated and determined in the procedure for determining the amount of litigation costs of this case, and the respondent can only raise a defense about the scope of the amount that should be repaid, and it is not allowed to dispute the existence of the obligation for repayment (see Supreme Court Order 200Ma5257, Sept. 23, 2002).

3. Conclusion

Therefore, the appeal of this case is dismissed as it is without merit. It is so decided as per Disposition.

Judges Lee Jae-chul (Presiding Judge)