[1] Where an obligee expands the purport of a claim, the time when statutory interest rate under Article 3(1) of the Act on Special Cases Concerning Expedition, etc. of Legal Proceedings can be applied to the expanded amount of claim (=from the day following the day on which a document expanding the purport of claim was served on the obligor)

[2] The meaning of "a case where it is deemed reasonable for an obligor to resist the existence or scope of the obligation" under Article 3 (2) of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings

[3] In a lawsuit seeking monetary payment where the first instance court accepted only a part of the Plaintiff’s claim and dismissed the remainder of the claim, whether the statutory interest rate under Article 3(1) of the Act on Special Cases Concerning Expedition, etc. of Legal Proceedings should not be applied until the date the first instance court rendered a judgment on the damages for delay of the cited amount (affirmative in principle), and whether the first instance court accepted the claim while disputing the existence and scope of the obligor’s obligation to perform, but rejected by the appellate court, if it was rejected by the appellate court (affirmative in principle)

[1] Article 3 of the Act on Special Cases concerning Expedition, etc. of Legal Proceedings / [2] Article 3 of the Act on Special Cases concerning Expedition, etc. of Legal Proceedings / [3] Article 3

[1] Supreme Court Decision 94Da56234 Decided February 17, 1995 (Gong1995Sang, 1420) / [2] Supreme Court Decision 99Da212 Decided January 21, 200 (Gong2000Sang, 474) Supreme Court Decision 9Da20155 Decided February 25, 200 (Gong2000Sang, 809) / [2] Supreme Court Decision 96Da17202 Decided July 14, 1998 (Gong198Ha, 2103) / [3] Supreme Court Decision 2015Da231870 Decided February 18, 2016

Plaintiff (Law Firm L&C, Attorneys Lee Sang-hoon, Counsel for plaintiff-appellant)

Defendant

Busan District Court Decision 2014Na3839 Decided July 17, 2015

1. From July 26, 2012 to January 21, 2014, the part of the lower judgment regarding delay damages against the Defendant, 44,30,063 won, calculated at the rate of 5% per annum from July 26, 2012 to January 21, 2014, and at the rate of 20% per annum from July 26, 2012 to the date of full payment from the next day to the date of full payment, as to KRW 1,324,937, the amount of KRW 1,835,025, which was calculated at the rate of 5% per annum from April 2, 2013 to July 17, 2015, the part of the lower judgment ordering the Plaintiff to pay KRW 20% per annum from April 2, 2014 to the date of full payment, and the Plaintiff’s claim against KRW 5,881,120 per annum from March 20, 2015.

2. The defendant's remaining appeal is dismissed.

3. 10% of the total costs of litigation shall be borne by the Plaintiff, and 90% by the Defendant respectively.

The grounds of appeal are examined.

1. A. Statutory interest rate under Article 3(1) of the Act on Special Cases Concerning Expedition, etc. of Legal Proceedings can be applied from the date following the date on which a written complaint demanding the performance of a monetary obligation or a document corresponding thereto is served on the obligor. Thus, if an obligee expands the purport of a claim, the interest rate under the above provision can be applied to the expanded claim amount from the day following the date on which the written statement expanding the purport of the claim was served on the obligor (see Supreme Court Decision 94Da56234 delivered on February 17, 1995, etc.).

Meanwhile, Article 3(2) of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings refers to cases where the existence of an obligation to perform is recognized as appropriate to dispute over the existence or scope of such obligation. Therefore, in a lawsuit seeking monetary payment, if the first instance court accepted only a part of the Plaintiff’s claim and dismissed the remainder of the claim, barring any special circumstance, it is reasonable that the Defendant would dispute over the existence or scope of the obligation to perform. Thus, the interest rate prescribed in the aforementioned special cases should not apply to delay damages for the amount of cited amount until the date when the first instance court declares the first instance judgment (see, e.g., Supreme Court Decision 2015Da231870, Feb. 18, 2016). If the obligor asserted in the first instance court disputing the existence or scope of the obligation to perform, even if the assertion was rejected in the appellate court, the claim can be deemed to have a reasonable ground, and thus, in such case, the interest rate prescribed in the above special cases cannot be applied until the appellate court declares the judgment.

B. The record reveals the following facts.

1) The Plaintiff submitted to the Defendant a complaint claiming the amount of KRW 45,625,00 on the basis of the claim for the return of legal reserve of inheritance and the delayed payment damages therefrom, and thereafter extended the claim amount to KRW 47,460,025 on April 1, 2013 (in addition to the claim amount of KRW 1,835,025), and the first instance court accepted part of the Defendant’s claim as to the property, which serves as the basis for calculating legal reserve of inheritance, and dismissed the remainder of the claim.

2) The Plaintiff filed a petition of appeal stating KRW 9,041,082 as well as delay damages (the addition of the claim amount to KRW 5,881,120) and filed a petition of appeal stating the purport of the appeal as to the part against which the Plaintiff lost while filing an appeal in the above judgment, and subsequently, filed an application for amendment to the claim on March 19, 2015 (the addition of the claim amount to KRW 5,225,680 and its delay damages at the rate of 20% per annum from July 26, 2012 (the next day after the delivery of a duplicate of the complaint) to the day of complete payment (the next day after the delivery of a duplicate of the complaint). The lower court rendered a judgment that modified the first instance judgment, including delay damages, with the content of citing all the expanded claims of the Plaintiff.

C. Therefore, with respect to the part of the Plaintiff’s expansion of the claim amount, the interest rate prescribed by the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings (hereinafter “Litigation Promotion Act”) may apply from the day following the day on which the document stating the same purport was served to the Defendant, and the period during which the Defendant’s dispute over the existence or scope of the obligation is reasonable cannot be applied. However, the lower court, without considering the time when each document expanding the Plaintiff’s claim was served to the Defendant, the amount cited in the first instance trial, and the scope of the amount cited in the first instance trial, which were dismissed only at the lower court, and accepted all the Plaintiff’s claim seeking payment of the total amount of the claim amount from the day following the delivery of a duplicate of the complaint to the day of full payment, which affected the conclusion of the judgment. In so determining, it erred by misapprehending the legal principles on Article 3 of the

2. Therefore, among the parts concerning delay damages against the defendant in the judgment of the court below, 44,30,063 won cited in the court of first instance shall be served with a copy of complaint from July 26, 2012 to January 21, 2014, which is the date of the judgment of the court of first instance; 5% per annum from July 26, 2012 to the date of the judgment of the court of first instance; 1,324,937 won, which is dismissed in the court of first instance, shall be served with a copy of complaint from July 26, 2012 to April 1, 2013; 30% per annum from the date of delivery of a copy of complaint; 1,835,025 won which is extended from April 26, 2013 to the date of delivery of a copy of complaint; 20% per annum from the date of cancellation to 25% per annum of the judgment of the court below; 30% per annum from July 17, 25, 2018.

Justices Kim Shin (Presiding Justice)