[1] In a case where a part of a lawsuit is withdrawn or the claim is reduced, whether Article 114 of the Civil Procedure Act applies to the litigation cost (affirmative), and the method for the parties to the lawsuit to receive reimbursement of the litigation cost corresponding to the part partially withdrawn or the claim is reduced

[2] The standard for calculating the attorney's remuneration to be included in the litigation cost in a case where the appellant reduced the scope of the appeal before the appellant appoints the attorney after submitting a petition of appeal

[1] In a case where a part of a lawsuit is withdrawn or the claim is reduced, it is reasonable to interpret that Article 114 of the Civil Procedure Act applies to the costs of lawsuit. In this case, in order for the parties to be reimbursed for the costs of lawsuit corresponding to the part of which the lawsuit is partially withdrawn or reduced pursuant to the above provision, the parties to the lawsuit shall apply for a judgment on the cost of lawsuit as a separate procedure from the final judgment to the court where the lawsuit is pending at the time the lawsuit is completed, and the parties to the lawsuit

[2] In full view of the provisions of Article 109(1) of the Civil Procedure Act, Articles 3(1), 4(1) and (2) of the Regulations on the Inclusion of Litigation Costs, Article 2(3) of the Act on the Stamps Attached to Civil Litigation, etc., and Article 25 of the Rules on the Stamps Attached to Civil Litigation, the attorney’s fees included in the litigation costs shall be calculated based on the value of the subject-matter of the lawsuit within the scope of remuneration paid or paid by the party to the contract for remuneration within the scope of the remuneration paid or paid by the party to the contract for remuneration, and the modification of the purport of the lawsuit shall be based on the modified purport of the claim, and the value of the subject-matter

On the other hand, the appeal shall be taken against the whole of the appeal, and a part of the appeal shall not be taken under the principle of the non-payment of the appeal, and it is only the meaning of reducing the scope of the appeal to be seen. However, if the appellant reduces the scope of the appeal before the appellant appoints the attorney after submitting the petition of appeal, it is reasonable to calculate the amount of the reduced appeal based on the scope of the reduced appeal.

[1] Article 114 of the Civil Procedure Act / [2] Articles 109(1), 114, 266(1), and 393 of the Civil Procedure Act; Articles 3(1) and 4(1) and (2) of the Rules on the Calculation of Litigation Costs for Attorney Fees; Article 2(3) of the Act on the Stamps Attached for Civil Litigation, Etc.; Article 25 of the Rules on the Stamps Attached for Civil Litigation, etc.

[1] Supreme Court Order 97Ma3132 dated August 25, 1999 (Gong1999Ha, 2156) / [2] Supreme Court Order 2012Ma420 dated September 6, 2012

Applicant

KON-based Law Firm (Attorney Kang Yong-soo, Counsel for the plaintiff-appellant)

Seoul Central District Court Order 2015Kada791 dated October 27, 2015

The order of the court below is reversed, and the case is remanded to the Seoul Central District Court.

The grounds of reappeal are examined.

1. In a case where a part of a lawsuit is withdrawn or the claim is reduced, it is reasonable to interpret that Article 114 of the Civil Procedure Act applies to the cost of lawsuit. In this case, in order to receive reimbursement of the cost of lawsuit corresponding to the part of which a part of the lawsuit is partially withdrawn or reduced under the above provision, the party shall file an application for a judgment on cost of lawsuit as separate procedure from the final judgment at the court where the lawsuit is pending at the time the lawsuit is to be completed, and shall be based on the party who bears and bears the cost of lawsuit determined accordingly (see Supreme Court Order 97Ma3132 delivered on August 25, 199).

In full view of the provisions of Article 109(1) of the Civil Procedure Act, Articles 3(1), 4(1) and (2), Article 2(3), Article 25 of the Act on the Stamps Attached to Civil Litigation, Etc., and Article 25 of the Rules on the Stamps Attached to Civil Litigation, etc., the attorney’s fees included in the litigation costs shall be calculated based on the value of the subject-matter of lawsuit per unit of each instance within the scope of fees paid or to be paid by the party under a contract for remuneration, and the modification of the purport of the claim shall be based on the amended purport of the claim, and the value of the subject-matter of lawsuit by the appellate court or the court of final appeal shall be based on the scope of objection by appeal (see Supreme Court Order 2012Ma420, Sept. 6, 2012).

On the other hand, the appeal shall be taken against the whole of the appeal, and a part of the appeal shall not be taken under the principle of the non-payment of the appeal, and it is only the meaning of reducing the scope of the appeal to be seen. However, if the appellant reduces the scope of the appeal before the appellant appoints the attorney after submitting the petition of appeal, it is reasonable to calculate the amount of the reduced appeal based on the scope of the reduced appeal.

2. The record reveals the following facts.

A. The Re-Appellant filed a lawsuit against the applicant for a contingent fee claim amounting to KRW 59,80,000, Seoul Central District Court Decision 2013Da39214, Ga 59,800,000, and damages for delay thereof (hereinafter “subject case first instance court”), and the above court rendered a judgment dismissing the Re-Appellant’s claim on April 2, 2014.

B. On July 11, 2014, the appellate court submitted a petition of appeal to the effect that the re-appellant filed a petition of appeal to the effect that the re-appellant’s appeal against the entire part of the judgment was dismissed, and on July 25, 2014, the Seoul Central District Court 2014Na34132 case (hereinafter “the second instance of the case”), which was the appellate court, filed a “application for modification of the purport of appeal” to seek payment of KRW 20,000,00 and damages for delay as the purport of appeal was reduced from the scope of appeal on the 21st day of the same month, and the said appellate court sent a copy of the petition of appeal and a copy of the application for modification of the purport of appeal to the applicant on July 25

C. On September 3, 2014, the applicant filed a letter of delegation to the court of the above appellate trial on September 3, 2014, and the re-appellant filed the statement of grounds of appeal on October 1, 2014.

D. On November 26, 2014, the second instance of the case at issue, the Re-Appellant submitted a “application for modification of the purport of the claim and appeal” to reduce the purport of the claim and appeal as KRW 5,000,000, and damages for delay thereof, and served on the applicant on December 1, 2014.

E. On December 24, 2014, the second instance court rendered a judgment dismissing the Re-Appellant’s appeal, and the judgment became final and conclusive as it is.

F. In the second instance of the subject case, the applicant filed a motion in this case seeking the burden of litigation costs and the determination of the amount of litigation costs with respect to the part of the lawsuit partially withdrawn due to the reduction of the claim as above. In calculating the attorney fees pursuant to Article 3 of the Rules on Attorney Fees, the lower court calculated the attorney fees for the first instance and the second instance of the subject case based on the same value of each of the subject cases as before the reduction of claim amounting to 59,80,000 won prior to the reduction of claim amount, and 5,00,000,000 won after the reduction of claim amount, calculated by adding the litigation costs for the part of the first and second instance lawsuits between the parties concerned, and then calculated the cost of the lawsuit as to the part completed due to the withdrawal (Reduction of claim) of part of the subject case between the parties concerned. It is evident that the Respondent is 6,014,300 won (the amount of litigation costs to be paid by the Respondent to the applicant in the subject case is 6,013,000 won.

3. Examining the above facts in light of the legal principles as seen earlier, after the scope of appeal of dissatisfaction of the second instance of the subject case was reduced to KRW 20,00,000,000, the appellant appointed the legal representative and participated in the lawsuit by the legal representative. Since the re-appellant again reduced the claim amount to KRW 5,00,000, the re-appellant did not have any special circumstances, the value of the subject case’s subject matter of lawsuit, which serves as the basis for calculating the cost for the part completed due to partial withdrawal of the lawsuit, shall have been based on the amount of KRW 20,00,000 prior to the reduction of claim and KRW 5,00,000 after the reduction of claim of the subject case, in the case of the second instance of the subject case.

Nevertheless, the lower court, without considering the circumstances in which the re-appellant submitted a petition of appeal on the whole part of the first instance judgment against the first instance judgment, did not immediately reduce the scope of the appeal amounting to KRW 20,000,000, the lower court calculated the value of the subject case based on KRW 59,800,000 before the reduction of the claim, and KRW 5,000,000 after the reduction of the claim. In so doing, the lower court erred by misapprehending the legal doctrine on the attorney’s cost, which is included in the litigation cost, thereby adversely affecting the conclusion of the judgment. The Re-appellant’s assertion that points this out is with merit.

4. Therefore, without further proceeding to decide on the remaining grounds of reappeal, the order of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Jae-hyung (Presiding Justice)