[1] In a case where only one of the joint tortfeasor has filed a lawsuit and jointly exempted, whether the costs of the lawsuit and the reimbursement of the costs of the lawsuit paid to the victim fall under the scope of the right to indemnity (affirmative), and the standard for calculating the amount of the costs of lawsuit

[2] The scope of compensation for the attorney's fees paid by one joint tortfeasor

[3] The case reversing the judgment of the court below which did not apply the interest rate under the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings from the day following the delivery of a complaint to the day of the judgment of the court of appeal on the grounds that the defendant's defense is not recognized as reasonable in the appellate court

[1] When one of the joint tortfeasors is subject to a lawsuit seeking damages from the victim and is jointly relieved of liability by paying the damages cited in the judgment, the amount equivalent to the ratio of the other joint tortfeasors' fault among the amount of joint immunity, and the statutory interest after the date of joint immunity and other irrecoverable expenses and damages can be claimed, unless there are special circumstances such as the unfair contestation. Such avoided costs and other damages shall include not only the amount paid to the victim by the joint tortfeasors, but also the costs spent in the course of the lawsuit. From among the attorney's fees paid, the amount within the reasonable range of liability can be claimed as the costs and other damages that cannot be reasonably determined in consideration of various circumstances such as the standard of remuneration under the Rules on the Calculation of Litigation Costs by the Attorney-at-Laws' Meeting, the rules, the value of the subject matter of lawsuit, the difficulty of the case, the process of the lawsuit, and the result of the judgment.

[2] One of the joint tortfeasors can claim full amount of the amount corresponding to the portion of the liability of the other joint tortfeasor out of the attorney's fees actually paid by him, and only the amount calculated by multiplying the attorney's fees actually paid by him by the cost-bearing ratio cannot be claimed against the other joint tortfeasor.

[3] The case reversing the judgment of the court below which did not apply the interest rate under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings from the following day of delivery of complaint to the date of the judgment of the court below on the ground that the part cancelled in the court below is not the amount of damages paid by one joint tortfeasor for joint immunity, but part of the attorney's fees corresponding to the expenses and other damages that cannot be avoided for joint immunity, and the cancelled amount is limited to 0.7% of the amount cited by the court below as small amount, and if the court below rendered a judgment as to the remaining amount of indemnity from the same point of view as the court of first instance, it cannot be deemed that there is a considerable reason to dispute the existence

[1] Article 425 of the Civil Code, Article 3 of the Rules on the Inclusion of Litigation Costs for Attorneys' Fees / [2] Article 425 of the Civil Code, Article 3 of the Rules on the Inclusion of Litigation Costs for Attorneys' Fees / [3] Article 3 of the Act on Special Cases

[1] Supreme Court Decision 94Da48257 delivered on October 12, 1995 (Gong1995Ha, 3726), Supreme Court Decision 95Da2951 delivered on November 29, 196 (Gong1997Sang, 156) / [3] Supreme Court en banc Decision 86Da1876 delivered on May 26, 1987 (Gong1987, 1058), Supreme Court Decision 89Da23510 delivered on June 26, 199 (Gong190, 1564), Supreme Court Decision 90Da9285 delivered on January 25, 1991 (Gong191, 845)

Dongyang Fire and Marine Insurance Co., Ltd. (Law Firm Han-dong Law Office, Attorneys O Chang-kon, Counsel for defendant-appellant)

Defendant

Seoul High Court Decision 96Na7030 delivered on November 1, 1996

Of the part against the plaintiff in the judgment of the court below, the part against the plaintiff as to 1,408,880 won and damages for delay and damages for delay as to 186,013,720 won are reversed, and this part of the case is remanded to the Seoul High Court.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

The court below decided that the plaintiff paid 15,00,00 won to the non-party 1 and the non-party 6 company's non-party 1 and the non-party 3 company's non-party 1 and the non-party 4 company's non-party 1 and the non-party 6 company's non-party 1 and the non-party 5 company's non-party 8's non-party 1 and the non-party 4 company's non-party 6 company's non-party 1 and the defendant's non-party 5 company's non-party 6 company's non-party 1 and the non-party 4 company's non-party 6 company's non-party 6 company's non-party 1 and the non-party 4 company's non-party 6 company's non-party 1 and the defendant's non-party 5 company's non-party 1 and the plaintiff's non-party 5 company's non-party 1 and the defendant 2 company's non-party 1.

When one of the joint tortfeasors is subject to a lawsuit seeking damages from the victim and is jointly relieved of liability by paying the damages cited in the judgment, the amount equivalent to the percentage of the other joint tortfeasors' fault among the amount jointly exempted, as well as the legal interest after the date of joint immunity and other expenses that cannot be avoided may be claimed, barring special circumstances such as the unfair response. The above-mentioned costs and other damages shall include not only the amount paid by the joint tortfeasors to the victim, but also the costs spent in the course of the above lawsuit. From among the attorney's fees paid, the amount within the reasonable scope determined based on reasonable judgment in consideration of the various circumstances such as the standard for remuneration under the Rules on the Calculation of Litigation Costs by the Attorney-at-Laws' Meeting, rules of jurisdiction, the value of the subject matter of lawsuit, the difficulty of the case, the process of the lawsuit, and the result of the judgment (see, e.g., Supreme Court Decisions 94Da48257, Oct. 12, 195; 29Da519695, Nov. 25, 1996).

However, even if a judgment on the burden of litigation costs became final and conclusive, the judgment on the burden of litigation costs alone does not necessarily require the amount of litigation costs to be reimbursed from the other party or title of debt to such litigation costs. Thus, the fact that the plaintiff or the non-party company received a judgment on the burden of litigation costs cannot be deemed as identical to that of the other party's share in the attorney's fees, and it is merely a degree expected that part of the other party can be compensated from the other party (Article 6 of the Rules on the Calculation of Litigation Costs). Since Article 3 of the Rules on the Calculation of Attorney's Fees recognizes the reduction by discretion, it cannot be concluded that the amount of the attorney's fees that can be claimed against the joint tortfeasor and the amount of the attorney's fees that can be recognized by the decision on the determination of the amount of litigation costs, which is a joint tortfeasor, can be claimed to the defendant in full with regard to the amount corresponding to the part of the defendant, who is the joint tortfeasor. As such, the judgment of the court below on the amount of the attorney's fees can be claimed.

The issue is that when the plaintiff and the non-party company filed an application for the determination of litigation costs against the plaintiff or the non-party company for the determination of litigation costs, the plaintiff or the non-party company can claim a small amount of the litigation costs considering the amount calculated by multiplying the total amount by the defendant's fault ratio and the comparison between the defendant's fees actually paid and the attorney's fees actually paid by the defendant. However, since the plaintiff and the non-party company cannot claim a prior reimbursement for the amount of litigation costs against the non-party company

2. Regarding ground of appeal No. 2

The judgment of the court of first instance ordering the Defendant to pay the amount of KRW 189,351,320, which is 80% of the total amount paid by the Plaintiff with the indemnity against the Plaintiff. On the grounds as seen in paragraph 1 of the above, the judgment of the court below ordered the Defendant to pay the amount of KRW 1,408,880 (=3,337,600 + 1,928,720), which is less than the judgment of the court of first instance, with the amount of KRW 187,942,440, which is less than the judgment of the court of first instance, and the amount of KRW 187,942,440 per annum until the date of the judgment of the court of first instance with respect to the total amount of KRW 187,942,40,00 per annum and damages for delay from the next day to the date of full payment.

However, the part cancelled in the court below is not the amount of damages paid by the plaintiff for joint immunity, but part of the attorney's fees corresponding to other expenses that cannot be avoided for joint immunity, and the cancelled amount is limited to 0.7% of the amount cited by the court below as the small amount of 1,408,80 won, and the remaining amount of indemnity is limited to 0.7% of the amount cited by the court below, and in such a case, the court below decided from the same point of view as the court of first instance. Thus, it cannot be deemed that there is a considerable reason to dispute the existence and scope of the obligation until the court below is sentenced (see Supreme Court Decision 90Da9285 delivered on January 25,

Nevertheless, the court below ordered the payment of damages for delay at the rate of five percent per annum until the date of the decision of the court below as to the total amount of the cited amount of the court below. The court below erred in the misapprehension of legal principles as to the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings

3. Therefore, among the part against the plaintiff in the judgment of the court below against the plaintiff, the damages for delay of KRW 186,013,720, which the plaintiff is dissatisfied with, shall be reversed, and this part of the case shall be remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jeong Jong-ho (Presiding Justice)