2019Ra2172 Confirmation of litigation costs

Attorney Lee Dong-A’s successor B

Youngyang-si Solsan-gu

C Autonomous Operating Management Council

Seoul Jongno-gu

Chairman of the Representative D

Seoul Central District Court Order 2018Kaode900 dated September 25, 2019

May 27, 2020

1. The instant appeal shall be dismissed.

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

1. Summary of grounds for appeal;

Since the applicant's right to claim reimbursement of litigation costs against the applicant is extinguished due to the completion of prescription due to his/her failure to exercise it for ten years from the date of the final decision of Seoul Central District Court 2004Gahap5686 (hereinafter "the judgment of this case"), the decision of the first instance court that determined the respondent's amount of litigation costs due to the claim for determination of the amount of litigation costs of this case filed thereafter shall be revoked unfairly.

2. Determination

A. Relevant legal principles

In a case where the obligation to reimburse costs of a lawsuit becomes final and conclusive by a trial, the amount of litigation costs can be determined in the determination procedure of the amount of litigation costs, and the existence or absence of the obligation to reimburse itself cannot be deliberated and determined (see, e.g., Supreme Court Order 2000Ma7028, Aug. 13, 2001; Supreme Court Order 200Ma5257, Sept. 23, 2002). Therefore, the other party can only present an opinion and evidence as to whether the items of expenses in the cost statement submitted by the applicant are bound by the litigation costs and the number thereof, and even if the substantive right to the cost burden becomes extinguished through reimbursement, offset, settlement, etc. conducted outside the determination procedure of the amount of litigation costs, such cause may only be a ground for filing a lawsuit for objection in the execution procedure of the final decision of the amount of litigation costs (see, e.g., Supreme Court Order 200Ma7028, Jul. 16, 2008).

Inasmuch as the completion of extinctive prescription is one of the grounds for the extinguishment of a claim, barring any special circumstance, whether the substantive right to bear the costs of lawsuit has become extinct due to the completion of extinctive prescription ought to also be deemed identical as above. In a case where a party asserts the commencement date of extinctive prescription, the existence of grounds for interruption, violation of the principle of trust and good faith, abuse of rights, etc. and contests the existence of substantive rights, examination of evidence, such as examination of witness, appraisal, fact-finding, etc. under the Civil Procedure Act shall be conducted, but evidence that can be promptly examined shall be based on the procedure for determining the amount of litigation costs based on vindication (Article 29

In light of the effect of the extinction of prescription, the method of evidence anticipated when there is a dispute on the validity of the statute of limitations, the nature of the procedure for the determination of the amount of litigation costs and the process thereof, etc., the issue of whether the statute of limitations for the right to claim reimbursement of litigation costs has expired is the principle of deliberation and determination through pleadings in the procedures for objection rather than the final procedure for the determination of the amount of litigation costs. However, in exceptional cases, it is desirable to determine the amount of litigation costs by raising an application for the determination of the amount of litigation costs more than ten years after the lapse of the ten-year statute of limitations for the right to claim reimbursement of litigation costs based on the date of submission of the application, and the other party can sufficiently confirm the completion of the statute of limitations in the following special circumstances: (a) whether the statute of limitations has expired in the procedure for the determination of the amount of litigation costs; and (b) whether the other party has the interest in the protection of rights in the lawsuit to file an application for the determination of the amount of litigation costs.

B. According to the allegations in the grounds of appeal of this case and the record as to the legitimacy of the decision of the first instance court, the applicant is asserting the grounds of appeal for the completion of extinctive prescription against the respondent's right to claim reimbursement of litigation costs on the grounds of the starting point of counting extinctive prescription, approval of obligations, abuse of rights, etc. In light of the above legal principles, insofar as the respondent's obligation to reimburse litigation costs against the applicant has already been established, the respondent can only calculate the amount of litigation costs that the respondent should reimburse to the applicant based on the principle, and it cannot be tried and determined separately as to whether the extinctive prescription of the right to claim reimbursement of litigation costs has expired (the respondent's assertion of extinction of the right to claim reimbursement due to the completion of extinctive prescription by filing a lawsuit of objection at the execution stage of the decision to determine the amount of litigation costs). Accordingly, the respondent's argument in the grounds of appeal of this case cannot be accepted without need to further examine, and no other ground for illegality of the decision of the first instance court exists.

3. Conclusion

The appeal of this case is dismissed as it is without merit.

May 27, 2020

Judge Kang-young of the presiding judge

Judges Cho Jong-sung

Judges Lee Jae-ho