Busan Accounting Corporation (Law Firm Lee, Attorneys Cho Young-hoon et al., Counsel for the defendant-appellant)

Hyundai Marine Fire Insurance Co., Ltd. (Attorney Park Sung-won et al., Counsel for the plaintiff-appellant)

November 16, 2017

Seoul Central District Court Decision 2016Gahap568161 Decided June 1, 2017

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

1. Purport of claim

The defendant shall pay 675,478,683 won to the plaintiff and 165,00,000 won from July 2, 2014; 22,000,000 won from September 23, 2014; 22,00,000 won from March 14, 2015; 22,00,00 won from March 24, 2015; 22,00,00 won from March 23, 2015; 169,137,243 won from May 23, 2015; 22,00,00 won from March 16, 200 to June 16, 201; and 30,000 won from June 21, 2016 to June 20, 2016; and 16,000 won from June 16, 2016 to June 216.

2. Purport of appeal

The part against the defendant in the judgment of the first instance is revoked, and the plaintiff's claim corresponding to the revocation is dismissed.

1. Quotation of the first instance judgment

The reasoning of the judgment of this case is as stated in the reasoning of the judgment of the first instance, except for the submission or addition of the judgment of the court of first instance, including the defendant's additional arguments in this court, and therefore, it is cited pursuant to the main sentence of Article 420

▣ 5쪽 16행의 표를 아래와 같이 수정한다.

The Seoul Central District Court 2014da51866 May 28, 2014, May 28, 2014, 2014, including Nonparty 2, 1, the Seoul Central District Court 2014da5186846, May 28, 2014, on June 3, 2014, 2014, including Nonparty 2, the Seoul Central District Court 2015Gahap2060, 2060 and Nonparty 3, etc., on January 19, 2015, on February 11, 2015, 2015, including Nonparty 1, 2015Da514730, Nonparty 4, etc., the Seoul Central District Court 2015Ga516, May 15, 2015

▣ 7쪽 [인정근거]에 “갑 제10 내지 19호증(가지번호 포함)의 각 기재”를 추가한다.

▣ 7쪽 제2의 가항 중 1)항의 마지막 부분에 아래와 같이 추가한다.

“The Defendant asserts that KRW 100 million should be deducted for each of the instant damages lawsuits, since the self-paid charges of the instant insurance contract apply to one claim. In light of the purport of the entire arguments in the statement in No. 3, the Defendant asserts that the total insurance premium of the instant insurance contract shall be KRW 58,400,00 per accident, the maximum amount of compensation shall be KRW 3 billion per accident, the maximum amount of compensation shall be KRW 5 billion, and the amount of self-paid charges shall be KRW 100,000 per accident, and all of the instant damages lawsuits shall be instituted in connection with the accounting audit of DNA. As seen earlier, the Plaintiff sought defense costs incurred in the instant damages lawsuit. In light of the process of the instant damages lawsuit and the details of the defense costs claimed by the Plaintiff, it shall be deemed that the Plaintiff deducts KRW 100,000 from the total defense costs incurred by the Plaintiff in the instant damages lawsuit, and the Defendant’s assertion that each of the Defendant’s damages lawsuit shall not be justified.”

▣ 제2의 나항 중 1)항 마지막 부분에 아래와 같이 추가한다.

"The defendant asserts that the insurance accident of this case occurred due to the plaintiff's intentional act or gross negligence, and that this is exempted from the liability to pay insurance proceeds in accordance with Article 659 of the Commercial Act, and that it is irrelevant to the res judicata of the preceding lawsuit. However, res judicata of a final and conclusive judgment affects all means of attack and defense which the parties have asserted or could have asserted (see Supreme Court Decision 91Da24847, 24854, Oct. 27, 1992, etc.) and as seen earlier, if a final and conclusive judgment dismissing the claim for confirmation of existence of the existence of the obligation, the existence of the obligation to pay insurance proceeds has res judicata effect, so the above argument of the defendant is without merit."

▣ 8쪽 7행부터 13행까지 삭제하고 아래와 같이 추가한다.

2) The allegation of the propriety of the cost of attorney

The defendant asserts that even if the obligation to pay insurance money is recognized, the attorney's fees paid by the plaintiff shall be reduced to an excessive amount in light of the difficulty, value of the subject matter of the lawsuit, and the amount of attorney's fees according to the rules concerning

However, the insurance contract of this case provides that the insured shall compensate for defense costs caused by the insured event, and there is no separate limitation on the amount of compensation for defense costs, and there is no ground to view the defendant to calculate the defense costs to be compensated based on the rule on inclusion of the cost of lawsuit in attorney fees.

Furthermore, in a case where there is an agreement with the client on the remuneration for the handling of delegated affairs of an attorney, an attorney-at-law who completed the delegated affairs may, in principle, claim the agreed amount of remuneration, barring any special circumstance. Barring any special circumstance, an attorney-at-law who has completed the delegated affairs may claim only the amount of remuneration within the scope exceptionally acknowledged to be contrary to the principle of good faith and equity (see, e.g., Supreme Court Decision 2000Da50190, Apr. 12, 2002). In light of the following circumstances: (a) the insured event of the instant case, the Plaintiff was likely to be subject to multiple lawsuits from DNA shareholders; (b) multiple lawsuits for damages have been additionally filed for a considerable period; and (c) the Plaintiff appears to have paid only a certain amount of advance payment in addition to the damages lawsuit filed first and thereafter, it is difficult to deem that the attorney-at-law fee spent by the Plaintiff unfairly excessive and contrary to the principle of good faith

3) Claim for deduction of value-added tax and litigation costs

The defendant asserts that the amount equivalent to the value-added tax included in the attorney's expenses is the input tax amount and thus the plaintiff is not entitled to deduct or refund from the output tax amount, and thus, the plaintiff should also be entitled to receive the reimbursement from the other party upon the application for confirmation of litigation costs in the lawsuit

“Defense costs” under Article 720(1) of the Commercial Act refers to the cost of judicial or extra-judicial proceedings incurred for the defense in a case where the victim suffered human and material damage caused by an insured accident against and filed a claim for damages against the insured (see Supreme Court Decision 2002Da22106, Jun. 28, 2002, etc.). The instant insurance contract provides that the Plaintiff shall compensate for the defense costs incurred by the Plaintiff in the instant lawsuit for damages. Accordingly, it is reasonable to view that the Defendant should compensate the Plaintiff for the entire defense costs incurred by the Plaintiff, and that the amount equivalent to the value-added tax should be compensated for the defense costs if the defense costs incurred by the Plaintiff are included in the value-added tax. Even if the Plaintiff may either deduct or refund the amount equivalent to the value-added tax out of the defense costs incurred by the Plaintiff from the output tax amount on account of such circumstances, it is difficult to view that the Defendant is the insurance amount only the remainder of the defense costs incurred by the Plaintiff

In addition, if a benefit accrues to the insured on the ground of an insured incident, the benefit should be deducted under the principle of equity, but the benefit to be deducted should be caused by the fact that the cause of the loss, as well as by proximate causal relation with the insurance accident. Since the amount equivalent to the litigation cost that can be repaid by the losing party in favor of the Plaintiff in the lawsuit of damages in this case is not a profit derived from the insurance accident in this case, it cannot be deemed as a profit with proximate causal relation with the insurance accident in this case, and thus, it cannot be viewed that the Defendant should not be deducted from the insurance amount payable by the losing party. There is no specific assertion or proof as to the amount equivalent to the litigation cost

2. Conclusion

The first instance judgment is justifiable. The defendant's appeal is dismissed, and it is so decided as per Disposition.

Judges Sung Dok (Presiding Judge) Park Jong-il