2012Da40349 Damage (as defined)

A person shall be appointed.

A person shall be appointed.

Seoul Central District Court Decision 2011428006 Decided April 20, 2012

March 27, 2014

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

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. In general, a mandatary shall perform his/her duty of care as a good manager according to the terms of delegation. In particular, an attorney-at-law who has been delegated a legal representative has the duty to faithfully protect the client’s rights based on professional legal knowledge and experience while performing his/her delegated duties. The scope of specific delegated duties is determined according to the terms of delegation contract between the attorney-at-law and the client; however, where an attorney-at-law has made a decision in lieu of conciliation in a lawsuit to which a legal representative has been delegated, the attorney-at-law has the duty to check and advise the client on the contents of the decision and objection to continuing the lawsuit, and if there is no special authority to do so and to the client,

5. In a case where an attorney-at-law has lost an opportunity to raise an objection against a decision substituting for conciliation due to a mistake in the above explanation, the client is liable to compensate for damages suffered by the client (see Supreme Court Decision 97Da1822 delivered on May 28, 1997).

2. Review of the reasoning of the lower judgment and the evidence duly admitted reveals the following facts.

A. On March 27, 2001, the Defendant, on behalf of the Plaintiff, filed a lawsuit against C claiming divorce and consolation money of KRW 50 million with the Seoul Family Court 2001Dhap3641, excluding division of property, on behalf of the Plaintiff, and accordingly C filed a counterclaim claiming divorce and consolation money of KRW 50 million.

B. Meanwhile, in addition to the above case, the Plaintiff delegated the U.S. attorney D, and filed a lawsuit against C on June 8, 2001, such as divorce, with the California L&C court of California.

C. On April 25, 2002, the Seoul Family Court rendered a judgment that "the plaintiff and C are divorced by the principal lawsuit, and C pays 30 million won to the plaintiff as consolation money. The plaintiff's remaining principal claim and C's counterclaim claim are dismissed, respectively."

D. On September 17, 2002, the Seoul Family Court rendered an appeal by C against the above judgment, and the Plaintiff, upon acquiring the U.S. citizenship, demanded the Defendant to proceed with the lawsuit in the U.S. court.

E. The Seoul High Court, the appellate court, divorced with the Plaintiff on February 20, 2003 on the date of mediation and the counterclaim, and C pays the Plaintiff the consolation money of KRW 30 million to the Plaintiff until March 31, 2003. The part on the property in Korea regarding the division of property in relation to the divorce of this case shall be waived.

On March 18, 2003, the plaintiff and C made a decision in lieu of the mediation of the contents that "to waive the remaining claims" (hereinafter referred to as "the compulsory adjustment of this case"). The decision was confirmed on March 18, 2003 because the defendant received the above decision and sent it to the plaintiff by facsimile and did not raise an objection.

F. On February 26, 2003, the Defendant made and sent a written statement to the effect that, since the Defendant renounced a claim for division of property to D attorney-at-law and was decided to undergo a trial in the United States, the Defendant had the right to jurisdiction over the Plaintiff since the solitary area, California, and that, on March 7, 2003, the Defendant “the Plaintiff was the U.S. citizen authority and confirmed that the Plaintiff became the U.S. citizen authority and decided to file all the lawsuit on the property in the future.”

G. The plaintiff's use on April 4, 2003 for the purpose of using in a lawsuit, such as divorce progress by the U.S. court.

E Certified Public Appraisal Corporation shall transfer 2.5 million won for appraisal fees to E, and on July 2003, it was prepared and issued an English appraisal report on the 393 square meters of the Songpa-gu Seoul, Songpa-gu, Seoul, and the five-story neighborhood living facilities (hereinafter referred to as "the commercial building of this case").

H. However, in a lawsuit pending in the U.S., the validity of the waiver clause on the division of property (hereinafter "the waiver clause of this case") during the compulsory conciliation in the lawsuit pending in the U.S., the defendant, on Feb. 2, 2007, prepared a written opinion stating that "The plaintiff, as a U.S. citizen, renounced his jurisdiction over the division of property at the Korean court about the division of property, and this is not a waiver of his or her property itself, but it is necessary to confirm and interpret the court's decision so that the waiver of his or her right to trial at the Korean court is possible, but it is necessary to clearly confirm and interpret it. The right to division of property is not an important reason for the plaintiff to waive his or her right to divorce as an important right, and the plaintiff wanted to undergo deliberation at the U.S. court to take into account the property in the U.S..

I. However, on June 25, 2007, the presiding judge of the above appellate court asked D about the meaning of the waiver provision of this case, and responded on July 26, 2007 to the purport that both parties waive their claim for division of property with respect to the property of the party located in Korea.

3. (1) The court below held that the Defendant’s explanation of the provision on the waiver of the instant case is contrary to the content of the instant forced conciliation, including the provision on the waiver of division of property, and it is difficult to regard it as an appropriate explanation. However, (2) The Defendant’s compulsory conciliation decision of this case is not a proper explanation.

3. Around December, 12, the Plaintiff sent it by facsimile to the Plaintiff. ② It is difficult to view that the Plaintiff had a problem in understanding the content of the instant compulsory adjustment as an academic career holder who opened a university, and ③ at the time, the Plaintiff was able to receive an attorney-at-law’s assistance because the Plaintiff filed a divorce lawsuit separately in the United States, and appointed a lawyer. ④ The Plaintiff received the instant compulsory adjustment order from the Defendant.

3. From the point of December 12, 2003, there was considerable time to consider whether to file an objection from March 17, 2003, which is the day immediately before the above decision became final and conclusive, and there was no objection as well.

Inasmuch as it is difficult to recognize the causal relationship between the defendant's improper explanation and the plaintiff's act of not raising an objection against the forced adjustment of this case on the grounds that it is difficult to recognize the causal relationship between the defendant's improper explanation and the plaintiff's act of not raising an objection against the forced adjustment of this case, the plaintiff's assertion that the plaintiff's claim for property division is not reasonable, and (3) the plaintiff's mental damage claimed by the plaintiff was caused by the impossibility of receiving property division by preventing the plaintiff from raising an objection against the forced adjustment of this case, and therefore, the plaintiff's assertion that the plaintiff is liable for compensation for damages because it is difficult to find that the plaintiff was unable to raise an objection due to the defendant's improper explanation.

4. Examining the reasoning of the lower judgment in light of the aforementioned legal principles and factual relations, it is appropriate for the lower court to have determined that the Defendant’s explanation on the waiver clause of the instant case was contrary to the content of the compulsory conciliation, and thus inappropriate. However, it is difficult to accept the lower court’s rejection of all of the Plaintiff’s claim for damages for the following reasons, on the ground that there was no causal link between the inappropriate explanation and the Plaintiff’

A. First, as a U.S. attorney, D, as an attorney-at-law of the Plaintiff, could not give advice to the Plaintiff by accurately ascertaining the instant compulsory adjustment provision under the laws of Korea. In fact, D, having inquired the Defendant, etc. about the meaning of the waiver provision of this case over several times, has tried to know the exact validity thereof. Therefore, it is not appropriate to consider the circumstances that the lower court could have been assisted by D, a U.S. attorney-at-law, as the grounds for denying the causal relationship of this case.

B. Notwithstanding the provision on the renunciation of the instant case, the Plaintiff still made a market value appraisal immediately after the compulsory conciliation of the instant case, knowing that it would be possible for the U.S. court to file a claim for division of property against the instant commercial building. This is supported by the circumstance that the Plaintiff would not object to the compulsory conciliation, including the provision on the renunciation of the instant case, if it was fully aware that the said provision is the content to waive the claim for division of property against the instant commercial

C. However, even if the Plaintiff is a senior academic person, it is difficult to view that the meaning of the provision on the waiver of this case, which the Defendant, who is an attorney-at-law, can accurately understand and explain by mistake. Moreover, even if the Defendant, who is obligated to faithfully protect the client’s rights based on professional legal knowledge and experience, prepared each of the above statements to the Plaintiff and D Attorney-at-law before the compulsory adjustment of this case became final and conclusive, and explained the meaning of the compulsory adjustment of this case, the Plaintiff, who is not a legal expert, is fully responsible to the Plaintiff, who is expected to understand and act differently, or who failed to act as such, without trust in the explanation.

Considering that it is unreasonable to regard it.

In addition, even if the Plaintiff had the ability or opportunity to grasp the meaning of the provision on the waiver of this case, if it cannot be denied that the Defendant’s inappropriate explanation as a lawyer was used as evidence in the process of rendering a decision not to object to the compulsory adjustment of this case, it cannot be readily concluded that there was no causation between the Defendant’s improper explanation and the passage of the objection period.

The court below cited the circumstances that the plaintiff did not raise any particular issue with respect to the compulsory adjustment of this case to the defendant from the time of 2007 as the grounds for denying causation, but rather, it can be the circumstance that the plaintiff believed the defendant's improper explanation about the meaning of the waiver provision of this case until then, and it is not enough to put the grounds for denying causation.

D. In light of these circumstances, the Plaintiff’s failure to file an objection within the period of compulsory adjustment seems to have been due to the Plaintiff’s failure to fully recognize the circumstances that the Plaintiff could not file a claim for division of property against the instant commercial building in the event that compulsory adjustment is finalized, due to the Plaintiff’s reliance on or acceptance of the Defendant’s improper explanation about the meaning of the provision on the renunciation of the instant case. Therefore, it is determined that there exists causation between the Defendant’s breach of duty to explain and advise and the Plaintiff’s failure to file an objection against the instant compulsory adjustment.

5. Nevertheless, the lower court determined otherwise that there was no causation between the Defendant’s improper explanation and the Plaintiff’s failure to file an objection, and dismissed all the Plaintiff’s claim for damages without further determination as to the existence and scope of damages. In so doing, the lower court erred by misapprehending the legal doctrine on liability for damages caused by the Plaintiff’s breach of duty to explain and advise, and by failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment. The Plaintiff’

6. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Young-chul

Justices Lee Sang-hoon

Justices Kim Yong-deok

Justices Kim Gin-young