Applicant 1 and four others (Law Firm Rate, Attorneys Yoon Yong-pon et al., Counsel for the plaintiff-appellant)

Respondent Co., Ltd. (foreign corporation) and 2 (Law Firm Dongdong Partners, Attorneys Kim Han-ju et al., Counsel for the defendant-appellant)

Seoul Central District Court Order 2008Kadam30498 dated July 23, 2008

1.The decision of the first instance shall be modified as follows:

2. The Seoul Central District Court order the respondent to deposit KRW 10,238,892 for the applicant as a security for the costs of lawsuit against the respondent in the Seoul Central District Court case No. 2008Gahap36393 (if any), within 14 days from the date this decision became final and conclusive.

3. The respondent may submit a document which has concluded a payment guarantee entrustment contract with the above amount as the guaranteed amount.

1. Basic facts

According to the records, the following facts are substantiated.

A. The respondent filed a shareholder representative lawsuit with Nonparty 1’s organization, Nonparty 2, 3, 4, 5, 6, 7, etc. to pay 18.95 billion won and damages for delay to the non-party 8 corporation jointly and severally as the Seoul Central District Court 2008Gahap36393, on the shareholder qualification of the non-party 8 corporation (hereinafter “instant principal lawsuit”).

B. The Respondent filed an application for the provision of security of litigation costs under Article 117 of the Civil Procedure Act, since the Respondent did not have any address, office, and office in the Republic of Korea as Seoul Central District Court 2008 Chicago30498.

C. On July 23, 2008, the above court calculated the litigation costs on the premise that the value of each of the subject-matter of the lawsuit in the appellate court and the final appeal in the case where the applicant loses as shown in attached Form 2, the above court ordered the respondent to deposit 441,413,884 won for the applicant.

2. The parties' assertion

A. Summary of the petitioner's assertion

In a shareholder representative lawsuit, that is, “Defendant”, where the other party to the lawsuit of this case files an appeal, that is, the part for which the claim has been accepted should not be performed by the Defendant (applicants) and that is, the part for which the judgment of the first instance is ordered by the Defendant (applicants). Therefore, the value of each of the subject-matter of lawsuit in the appellate trial and the final appeal is 18.95 billion won to be borne when the Defendant (Applicants) loses all of the subject-matter of the lawsuit of this case. Therefore, the secured amount of litigation costs ought to be calculated based on 18.95 billion won.

B. Summary of the respondent's assertion

Article 15(1) of the Decree on the Stamps of Civil Procedure, Etc. provides for a shareholder representative lawsuit as a lawsuit in which it is impossible to calculate a lawsuit, and Article 18-2 of the same Rule provides for a shareholder representative lawsuit as KRW 50,000,100. Therefore, even in cases where the defendant (the respondent of this case) who has lost his/her whole lawsuit on the merits files an appeal, the value of the subject-matter of the lawsuit is KRW 50,000,100, as in cases where the plaintiff (the respondent of this case) files an appeal. Therefore, the secured amount of the litigation costs ought to be calculated based on KRW 50,00,100.

3. Determination

A. Provisions of the law

Act on the Stamps Attached to Civil Litigation, Etc. (hereinafter referred to as the "Act");

Article 2 (President) (1) Revenue stamps equivalent to the amount falling under any of the following subparagraphs shall be attached to a complaint (excluding a counterclaim and a complaint to be submitted to the Supreme Court) according to the value of the object of lawsuit (hereinafter referred to as a “claim”):

omission by each subparagraph

(3) A lawsuit shall be calculated pursuant to Articles 26 (1) and 27 of the Civil Procedure Act, but the standards for calculating lawsuits by Supreme Court Regulations may be determined.

(4) Any lawsuit on a property right, in which such lawsuit cannot be calculated, and any lawsuit on a non-property right shall be prescribed by the Supreme Court Regulations.

The revenue stamp which is one and a half times the amount prescribed in Article 2 shall be attached to the petition of appeal, and the revenue stamp which is double the amount prescribed in Article 2 shall be attached to the petition of appeal (including a petition to be submitted to the Supreme Court).

Civil Procedure Act

Article 26 (Calculation of Value of Subject-Matter of Lawsuit) (1) Where the Court Organization determines jurisdiction according to the value of subject-matter of lawsuit, such value shall be determined based on the profits asserted in a lawsuit.

(2) Where the value under paragraph (1) cannot be calculated, such value shall be governed by the provisions of the Act on the Stamps Attached for Civil Litigation, etc.

Rules on Recognition of Civil Procedure, etc. (hereinafter referred to as "Rules");

In principle, the lawsuit pursuant to Article 2 (1) of the Act shall be determined by objectively evaluating the economic benefits to be directly received when the plaintiff won the whole part of the lawsuit from the plaintiff's standpoint within the scope of the claim sought by the plaintiff.

Article 7 (Criteria for Calculation of Lawsuit) The lawsuit shall be calculated on the basis of the time when the lawsuit is brought (where a lawsuit is deemed to have been instituted under the provisions of Acts, the time when the lawsuit is deemed to have been instituted).

Article 15 (Lawsuits Related to Company, etc.) (1) A shareholder's representative lawsuit, director's lawsuit demanding the maintenance of illegal acts, and lawsuit demanding the issuance and maintenance of new shares against the company shall be deemed a lawsuit for which the lawsuit cannot

Article 18-2 (Action on Property Right, etc. In which No lawsuit cannot be calculated, which is a lawsuit on the property right, and the lawsuit on the non-property right, shall be KRW 20 million: Provided, That the lawsuit on the lawsuit prescribed in Articles 15 (1) through (3), 15-2, 17-2, and 18 shall be KRW 50 million.

Article 25 (Principles) The amount of revenue stamps to be attached to a petition of appeal or a petition of appeal shall be calculated on the basis of a lawsuit within the scope to be deemed an appeal.

B. Determination

⒧ 먼저, 위와 같은 법률의 규정에 의하면 소송목적의 값은 원고가 소로 주장하는 이익을 기준으로 계산하여 정하여야 하는데( 민사소송법 제26조 ), 구체적으로 원고가 청구취지로써 구하는 범위 내에서 원고의 입장에서 보아 전부 승소할 경우에 직접 받게 될 경제적 이익을 객관적으로 평가한 금액이 된다( 규칙 제6조 ). 다만, 재산권상 소로서 그 소가를 산정할 수 없는 것은 대법원규칙으로 그 소가를 정하도록 하고( 법 제2조 제4항 ), 주주의 대표소송은 소가를 산출할 수 없는 소송으로 보며( 규칙 제15조 제1항 ), 그 경우 소송의 소가는 5,000만 100원으로 하고 있다( 규칙 제18조의 2 ).

Articles 25(a) and 25(2) of the Rules provide that the amount of revenue stamps to be attached to a petition of appeal or a petition of appeal shall be calculated on the basis of a lawsuit within the scope of objection. In light of the legal system, Article 25 of the Rules provides that the amount of revenue stamps to be attached to a petition of appeal or a petition of appeal shall be calculated on the basis of a lawsuit within the scope of objection. In addition, if an appeal or a petition of appeal is filed, the amount of revenue stamps shall be attached to the amount of 1.5 times (appeal) or 2 times (appeal) of the revenue stamps of the court of first instance within the scope of the provisions of Article 3 of the Act. Ultimately, the amount of revenue stamps at an appellate court or a court of final appeal shall be the amount equivalent to 1.5 times (Appeal) or the amount of revenue stamps calculated on the basis of Article 2(1) of the Act within the limit of objection by the parties.

Article 7 of the Civil Procedure Act provides that the value of the subject-matter of a lawsuit shall not be determined based on the defendant's economic interest, but on the basis of the plaintiff's interest in the lawsuit. However, if the value of the subject-matter of a lawsuit cannot be calculated, it shall be determined based on the time the lawsuit was filed (Article 7 of the Rules). The fact that the value of the subject-matter of a lawsuit is changed according to the decision of the court of first instance although there is no change in the plaintiff's purport of the lawsuit, is contrary to the above provision. (3) Article 25 of the Rules on the Value of Stamps to be posted on an appeal petition provides the criteria for the specific calculation of the subject-matter of the subject-matter of a lawsuit within the limit of the value of the subject-matter of a lawsuit sought by the plaintiff. (4) Unless there is a counterclaim such as the defendant, etc., the subject-matter of a lawsuit is not allowed beyond the value of the subject-matter of a lawsuit sought by the plaintiff and the defendant, the subject-matter of a lawsuit can still be interpreted to 100 billion won in the subject-matter of a lawsuit.

x) If the petitioner appeals in full, the decision of the court of first instance on the premise that the value of the subject-matter of the appeal is KRW 18.95 billion shall be unfair if the petitioner appeals in full.

[The Supreme Court also ruled that both the plaintiff and the defendant's lawsuits are KRW 50,000,100 in all respect of the case in which both the plaintiff and the defendant appealed against the judgment of partial winning in the shareholder representative lawsuit. See Supreme Court Decision 2003Da69638, supra.]

(v) if the amount of the cost of the lawsuit ordered to be provided to the respondent is re-calculated, it shall be KRW 10,238,892 as shown in attached Form 1.

⑹ 한편, 신청인들은 소송비용담보액 중 변호사 보수는 신청인들이 실제로 다툴 경제적 이익이 있는 189억 5,000만 원을 기준으로 산정되어야 한다고 주장한다. 그러나 이 사건 신청은 신청인들이 본안 소송에서 승소한 경우 피신청인들로부터 상환받을 소송비용에 관한 담보의 제공을 요청하는 것이므로, 신청인들이 상환받을 수 있는 소송비용의 한도 내에서만 인용되어야 할 것이다. 그리고 주주대표소송의 피고들인 신청인들에게는 상법 제405조 제1항 또는 증권거래법 제191조의 13 제6항 이 적용되지 않는다. 따라서 신청인들이 상환받을 수 있는 변호사 보수는 민사소송법 제109조 제1항 에 따라 대법원규칙이 인정하는 금액의 범위 내에서 인정될 뿐이다. 한편, 「변호사 보수의 소송비용산입에 관한 규칙」 제3조 제1항 에서는 소송목적의 값에 따라 변호사보수를 산정하도록 하고 있는데 이 사건 본안소송의 소송목적의 값은 앞서 본 바와 같이 5,000만 100원이므로, 이 사건에서 변호사 보수의 기준은 5,000만 100원을 기준으로 산정하여야 한다. 신청인들의 이 부분 주장은 이유 없다.

4. Conclusion

Therefore, the applicant's application of this case should be accepted within the scope of KRW 10,238,892. The decision of the first instance court is partially unfair, and it is so decided as per Disposition by the assent of all participating Justices.

Judges Kim Byung-chul (Presiding Judge) Constitution of the Republic of Korea