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

[2] The case reversing and losing the judgment below on the ground that the application of Article 3 (2) of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings is erroneous

[1] Article 3(2) of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings provides that the provisions of paragraph (1) shall not apply to a case where it is deemed reasonable for an obligor to dispute over the existence and scope of the obligation until the obligor is declared a fact-finding court that declares the existence of the obligation. In this context, it is reasonable for the obligor to resist the existence and scope of the obligation. It refers to a case where the obligor’s assertion in dispute over the existence and scope of the obligation is recognized as a reasonable ground.

[2] Where the debtor's assertion was accepted by the court below prior to remanding, the case reversed and remanded the judgment of the court below which ordered the debtor to pay damages for delay at the rate of 25% per annum from the day following the date of the court of first instance to the day of first instance to the day of returning the money which the debtor accepted in the court below prior to the reversal of the judgment, on the ground that there is an error of law by misunderstanding the legal principles of Article 3 of the Act on Special Cases concerning the Promotion of Legal Proceedings, etc

[1] Article 3(2) of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings / [2] Article 3(2) of the Act

[1] [2] Supreme Court Decision 92Da23827 delivered on October 13, 1992 (Gong1992, 3129), Supreme Court Decision 94Da2942 delivered on November 11, 1994 (Gong1994Ha, 3267), Supreme Court Decision 95Da51960 delivered on February 23, 1996 (Gong196Sang, 1075) / [1] Supreme Court en banc Decision 86Meu1876 delivered on May 26, 1987 (Gong1987, 105Da56234 delivered on February 17, 195) (Gong195, 195Da293749 delivered on March 24, 1995)

National Federation of Fisheries Cooperatives (Attorney final0 and one other, Counsel for the plaintiff-appellant)

Dongsung Shipping Co., Ltd. (Attorney Jung-dong et al., Counsel for the defendant-appellant)

Supreme Court Decision 93Da5664 Delivered on July 25, 1995

Busan High Court Decision 95Na9280 delivered on December 12, 1996

The part of the judgment of the court below against the defendant is reversed. The part against the defendant of the judgment of the court of first instance ordering payment exceeding the amount equivalent to five percent per annum from February 14, 1990 to July 25, 1995, and twenty-five percent per annum from July 26, 1995 to the full payment date, and the part against the plaintiff's claim as to this part shall be dismissed. The remaining appeal shall be dismissed. One half of the total litigation costs shall be borne by the plaintiff and the remainder by the defendant.

We examine the grounds of appeal.

1. According to the reasoning of the judgment below, the court below confirmed the facts as stated in its reasoning as to the course and cause of the collision accident of the ship of this case and the location of the responsibility thereof, and determined that the accident of this case is concurrent with the negligence of the crew members of 55 Y, who own the defendant, and the crew members of 8,55 Y, who own the defendant, and that the negligence of the crew members of 8,55 Y-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-ho-ho. In light of the relevant evidence

2. The lower court determined that the Defendant is obligated to determine the amount that the Defendant is liable to pay to the Plaintiff as KRW 123,797,500, and to pay damages for delay in addition to the annual rate of 25% per annum from July 31, 1992 to the date of full payment as stipulated in Article 3(1) of the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings (hereinafter “Special Cases”), with respect to KRW 75,219,527 cited in the first instance trial among the above amount.

However, Article 3(2) of the Special Act provides that the provision of paragraph (1) shall not apply to a case where it is deemed reasonable for an obligor to resist the existence or scope of the obligation until a fact-finding court declaring the existence of the obligation is declared. In this context, when it is deemed reasonable for the obligor to resist the existence or scope of the obligation, it shall be interpreted that the time when the obligor’s assertion in a dispute over the existence or scope of the obligation is deemed to have considerable grounds (see Supreme Court en banc Decision 86Meu1876 delivered on May 26, 1987, Supreme Court Decision 92Da23827 delivered on October 13, 1992, and Supreme Court Decision 95Da51960 delivered on February 23, 196, etc.).

According to the records, with respect to the plaintiff's claim of this case, the first instance court ordered payment of 5% per annum from February 14, 1990 to July 30, 1992, which is the date of the first instance judgment from February 14, 1990 to the date of the first instance judgment, and damages for delay at the rate of 25% per annum from the next day to the date of full payment. The court below accepted the defendant's appeal and rendered a judgment against the plaintiff in whole. The result of the plaintiff's appeal was reversed. The court below accepted part of the plaintiff's appeal against the first instance judgment, and the court below remanded part of the judgment below to the plaintiff. The defendant's appeal against the first instance judgment is partially accepted, and it is reasonable that the defendant's obligation to pay 75,219,527 won per annum from the next day to the date of the first instance judgment to the date of first instance judgment, to the extent of its obligation to pay damages for delay by 25% per annum from the first instance judgment to the date of 294.7.7.

If the defendant's argument was accepted by the court below prior to remand, it is reasonable to see that there was a reasonable ground for dispute over the existence or scope of the defendant's obligation, at least before the judgment is reversed. Nevertheless, the court below's order to pay damages for delay at the rate of 25 percent per annum from the day after the first instance court sentenced the amount of KRW 75,219,527 cited by the court of first instance to 75,219,527 is erroneous in the misapprehension of legal principles under Article 3 of the Act on Special Cases concerning the Settlement of Land, etc., and the arguments pointing this out are with merit. Accordingly, this part of the judgment of the court below cannot be reversed.

This part is sufficient to be tried directly by the court, so the defendant shall make a self-determination pursuant to Article 407 of the Civil Procedure Act. Of the above amount, the defendant shall pay to the plaintiff 123,797,500 won and the above amount of 75,219,527 won cited in the first instance court from February 14, 1990 to July 25, 1995, which is the date of a judgment of remand of this court, five percent per annum under the Civil Act, five percent per annum from July 26, 1995 to the date of a judgment of remand of this court, and twenty percent per annum from July 26, 1995 to the date of full payment. The plaintiff's damages for delay shall be remanded to the court below, and the plaintiff's damages for delay shall be paid at the rate exceeding 48,577,97,93 won additionally cited in the second instance court after remanding from January 24, 199 to December 12, 1996.

For the same reason, the part concerning delay damages in the Defendant’s appeal is partly reasonable, and the final judgment shall be accepted, and the remaining final appeal shall be dismissed as it is without merit. One half of the total costs of the lawsuit shall be borne by the Plaintiff and the remainder by the Defendant. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Chocheon-sung (Presiding Justice)