[1] In a case where a lawsuit is dismissed against a legal representative for lack of power of attorney and the legal representative has been tried to bear the costs of lawsuit, whether Articles 391, 425, and 443 of the Civil Procedure Act prohibiting an independent appeal against a judgment on the costs of lawsuit apply (negative), and in this case, the method against which the legal representative may object to the judgment ordering him/her to bear the costs (=Immediate appeal or reappeal)

[2] In a case where a litigation is dismissed by a final judgment and the litigation cost is to be borne by an unauthorized representative, whether the litigation representative shall be notified of the result of the trial even if he/she resigned before the judgment is rendered (affirmative), and whether the same applies to a case where the appellate court rejects an appeal and allows the unauthorized representative to bear the litigation cost after the appeal is made (affirmative)

[3] In a case where an attorney failed to prove that he/she had the power of representation or the authority required for procedural acts, but there was no gross negligence in connection with the delegation of a lawsuit, whether the person who entrusted the institution of a lawsuit shall bear the costs of lawsuit (affirmative)

[1] Where a lawsuit is dismissed against a legal representative on the ground that there is no power of attorney, and the legal representative has been tried to bear the costs of lawsuit pursuant to Article 108 of the Civil Procedure Act, unlike general costs of lawsuit, Articles 391, 425, and 443 of the Civil Procedure Act prohibiting an independent appeal against a judgment on costs of lawsuit because the person who bears the costs of lawsuit is not a party to the lawsuit, is not a party to the lawsuit, but the legal representative is not a party to the lawsuit according to a judgment on the burden of costs of lawsuit, but the court cannot be deemed to have tried on a dispute between the parties, and the party cannot file an appeal or a final appeal against the judgment ordered to bear the costs to him/her, regardless of the form of the judgment, and the legal representative, who is an

[2] In a case where a litigation is dismissed by a final judgment pursuant to Articles 108 and 107(2) of the Civil Procedure Act and the litigation costs are to be borne by an unauthorized representative who has conducted litigation on behalf of the party himself/herself, the result of the trial shall be notified by serving an original copy of the judgment even if the attorney has already resigned prior to the rendering of the judgment. The same applies to a case where the appellate court dismissed the appeal and allows the unauthorized representative to bear the litigation costs after the appeal. If the court fails to notify the unauthorized representative of the result of the judgment ordering the cost of lawsuit to bear the litigation costs and fails to comply with the appeal period against the judgment imposing the litigation costs, barring special circumstances, the unauthorized representative fails to comply with the appeal period due to reasons not attributable to himself/herself.

[3] Even where an attorney fails to prove that he/she was authorized to exercise his/her authority or to conduct procedural acts pursuant to Articles 108 and 107(2) of the Civil Procedure Act, if the attorney did not commit gross negligence with respect to delegation of a lawsuit, the costs of the lawsuit shall be borne by the person who delegated the institution of the lawsuit to the attorney.

[1] Articles 108, 391, 425, and 443 of the Civil Procedure Act / [2] Articles 107(2) and 108 of the Civil Procedure Act / [3] Articles 107(2) and 108 of the Civil Procedure Act

[1] Supreme Court Decision 96Da48756 Decided October 10, 1997 (Gong1997Ha, 3408) / [3] Supreme Court Decision 96Da39301 Decided July 25, 1997 (Gong1997Ha, 2666) Supreme Court Order 201Ma381 Decided July 4, 2014

Re-appellant

Seoul High Court Decision 2014Na46800 decided March 26, 2015

The part of the judgment below regarding the costs of lawsuit shall be reversed, and the costs of lawsuit after the appeal shall be borne by the Nonparty (resident registration number omitted).

1. Determination on the legitimacy of the reappeal

A. In a case where a lawsuit is dismissed against a legal representative on the ground that there is no power of representation, and the legal representative has been tried to bear the costs of lawsuit pursuant to Article 108 of the Civil Procedure Act, the provisions of Articles 391, 425, and 443 of the Civil Procedure Act prohibiting an independent appeal against a judgment on costs of lawsuit because the person who bears the costs of lawsuit is not a party to the lawsuit, unlike the case of the general costs of lawsuit, shall not be deemed to have been applied. However, since the legal representative is not a party to the lawsuit by a judgment on the burden of costs of lawsuit and the court cannot be deemed to have tried on a dispute between the parties, it shall not be allowed to file an appeal or a final appeal with the other party to the judgment ordering the cost of lawsuit, and the legal representative, regardless of the form of such judgment, may lodge an appeal or a final appeal against the judgment ordering him/her (see Supreme Court Decision 96Da48756, Oct. 10,

Meanwhile, in a case where a lawsuit is dismissed by a final judgment pursuant to Articles 108 and 107(2) of the Civil Procedure Act and the litigation costs are to be borne by an unauthorized representative who has conducted such litigation on behalf of the party himself/herself, even if the attorney already resigned prior to the rendering of a judgment, he/she shall notify the result of the trial by serving an original copy of the judgment, etc. Even if the attorney already resigned, and this shall also apply in a case where the appellate court dismissed the appeal and allows the unauthorized representative to bear the litigation costs after an appeal. If the court did not notify the unauthorized representative of the result of the judgment ordering him/her to bear the litigation costs as above and did not comply with the appeal period against the judgment imposing the litigation costs, such unauthorized representative shall be deemed not to have complied with the appeal period due to a

B. Examining the reasoning of the lower judgment and the record, the lower court rejected the instant appeal on the grounds that the appeal filed by the re-appellant as the Plaintiff’s legal representative without lawful delegation of a lawsuit, and that the defect was not cured through legitimate request for continuation after the appeal, etc., and ordered the re-appellant to pay for expenses incurred in appeal as the Plaintiff’s legal representative without any authority. Nevertheless, the lower court did not notify the result of the judgment by serving an original copy of the judgment on the re-appellant on the ground that the re-appellant resigned before the judgment of the lower court was rendered. The Defendant of the case on the merits was filing a motion for confirmation of the amount of litigation costs against the re-appellant, etc., and the lower court knew of the outcome of the judgment on the burden of litigation costs only when the re-appellant was served on February 19, 2016 and filed the instant reappeal on February 19, 2016.

Examining the above facts in light of the legal principles as seen earlier, the re-appellant is deemed to have failed to observe the appeal period against the judgment on the burden of litigation costs due to a cause not attributable to himself, and thus, the re-appellant’s appeal of this case is lawful.

2. Judgment on the grounds for reappeal

A. Even where an attorney fails to prove that he/she was authorized to exercise his/her authority of representation or to conduct procedural acts pursuant to Articles 108 and 107(2) of the Civil Procedure Act, in cases where the attorney did not commit gross negligence with respect to the delegation of the said lawsuit, the said litigation cost is reasonable to have the person who entrusted the institution of the said lawsuit to the attorney (see, e.g., Supreme Court Decisions 96Da39301, Jul. 25, 1997; 2014Ma381, Jul. 4, 2014).

B. The record reveals the following facts.

(1) On February 16, 2012, the Plaintiff: (a) drafted a letter of delegation that delegates all the powers pertaining to the instant lawsuit to the Nonparty; and (b) certified by a notary public on March 16, 2012 as Red Interest Law Firm 2012, etc.

(2) On April 3, 2013, the Plaintiff and the Nonparty directly found the office of the re-appellant, 202, located in Seocho-gu Seoul, Seocho-gu, and entrusted the first instance court to the re-appellant.

(3) On October 8, 2013, the Plaintiff prepared a written statement with the purport that he/she delegated the instant lawsuit to the Re-Appellant, and on the same day, a notary public certified as a new notary public No. 1691 in 2013, in response to the same day.

(4) On July 29, 2014, the Nonparty delegated the Plaintiff to the Re-Appellant with 3 or 4 copies of the Plaintiff’s letter of delegation of lawsuit in the name of the Plaintiff, on which the Plaintiff’s signature and seal was affixed, and re-appellant delegated the Plaintiff’s lawsuit. On July 29, 2014, the Re-Appellant filed a claim for cancellation of the registration of partial transfer of the right to collateral security (right to collateral security) with the Seoul Central District Court 2014Kahap39096, which was partially transferred by the Defendant under the name of the Plaintiff. On the same day, the Nonparty filed a claim against the said company for suspension of compulsory execution with the Seoul Central District Court 2014Kada4586.

(5) When the first instance judgment was rendered on August 27, 2014 without knowing the fact that the Plaintiff died on August 23, 2014, the Re-Appellant: (a) contacted the Nonparty, who was the Plaintiff’s mandatary, and became aware of the result of the first instance judgment on September 12, 2014; and (b) the Nonparty filed an appeal on the instant case with the Seoul Central District Court’s order 2014Kahap39096 claim for cancellation of the registration of partial collateral security transfer; and (c) the Nonparty filed an appeal using the letter of delegation of lawsuit in the name of the remaining Plaintiff, among the delegation of lawsuit issued at the time when the Plaintiff filed the application for suspension of enforcement, using the letter of delegation of lawsuit in the name of the Plaintiff. Accordingly, the Re-Appellant filed an appeal on September 12, 2014, accompanied by the power of attorney in the name of the Plaintiff.

(6) On March 10, 2015, the Re-Appellant, upon becoming aware of the Plaintiff’s death, submitted a request for fact inquiry to identify the Plaintiff’s heir, requested for delivery of documents, etc., but was notified by the lower court on March 10, 2015, submitted a resignation statement on March 18, 2015, and thereafter, the lower court was sentenced on March 26, 2015.

C. Examining the above facts in light of the legal principles as seen earlier, around September 12, 2014, the Nonparty, who is the Plaintiff’s mandatary, entrusted the re-appellant, a lawyer, with all of the legal actions relating to the appeal of this case. Since it does not seem that the re-appellant was grossly negligent with respect to the delegation of the lawsuit, the litigation costs therefrom shall be borne by the delegating person.

Nevertheless, the lower court: (a) acknowledged that the Plaintiff was dead on August 23, 2014, which was after June 25, 2014, the date of closing of argument in the first instance court; (b) suspended the instant litigation proceeding due to the completion of litigation affairs entrusted on September 1, 2014 by the original copy of the judgment in the first instance court to the Re-Appellant, who was an attorney-at-law, the Plaintiff, the attorney of the first instance court, and was not granted special authorization for the filing of a lawsuit; and (c) ordered the re-appellant to bear the costs of appeal as the Plaintiff’s legal representative on the ground that the said appeal was unlawful on September 12, 2014 without legitimate delegation of a lawsuit; and (d) the defect was not cured through legitimate request for resumption; and (c) thereby, the lower court erred and adversely affected the conclusion of the judgment by misapprehending the legal doctrine on the burden of litigation costs by an unauthorized representative, thereby adversely affecting the conclusion of the judgment.

3. Conclusion

Therefore, the part of the judgment of the court below regarding the costs of lawsuit is reversed, and this part is sufficient for this court to directly render a judgment. The costs of lawsuit after filing an appeal shall be borne by the Nonparty. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kwon Soon-il (Presiding Justice)