[1] The case where the appellate court may apply for the provision of security for the costs of lawsuit

[2] In a case where Gap filed a lawsuit against Eul, but the first instance court dismissed Gap's claim on the ground that the period of extinctive prescription expires clearly, and Gap appealed, and Eul filed an appeal, and the court below rejected Eul's claim as a security for litigation costs at the appellate court, the case holding that the court below erred by misapprehending the legal principles in the judgment below which dismissed Eul's claim, although it is sufficiently probable that Eul knew of Eul's claim at the first instance court after the first instance court's judgment or caused new security at the appellate court, in light of all circumstances, although it is sufficiently probable that Eul's claim was not known that there was no reason for the first instance court's claim, and it was sufficiently probable that Eul knew of

[1] The main sentence of Article 117(1) of the Civil Procedure Act provides, “Where a plaintiff deems it necessary to provide security for litigation costs, such as when he/she has no address, office, or place of business in the Republic of Korea, or when it is evident that a claim is groundless by the complaint, preparatory documents, or other records of trial, the court shall order the plaintiff to provide security for litigation costs if the defendant makes an application.” Article 118 of the Civil Procedure Act provides, “In the event the defendant has presented his/her argument about the merits or made a statement during the preparatory date for pleading

Therefore, it is possible to apply for the provision of security in the appellate court only when the applicant could not apply for the provision of security without negligence, or the new cause of security has occurred in the appellate court even though the cause of the provision of security has already occurred in the first instance or the appellate court.

[2] In a case where Gap filed a lawsuit against Eul, and the first instance court dismissed Gap's claim on the ground that the period of extinctive prescription expires clearly, and Gap appealed, and Eul filed an appeal, and the court below rejected Gap's claim to provide litigation costs at the appellate court, the case held that the court below rejected Gap's claim without examining whether the first instance court ordered Gap to provide litigation costs after the first instance court's order, and it is hard to see that Gap's claim constitutes a case where there is no reason by the complaint, brief, and other records of trial at the time of the first instance court's appeal, and that Eul did not submit a statement of grounds for appeal and other documents, but it was argued that Eul's claim did not expire after the lapse of extinctive prescription period, or that Eul did not clearly explain that there was a ground for extinctive prescription period, and thus, it is anticipated that the additional litigation costs will be required because Eul was appointed as the first instance court's attorney at the appellate court for the first time. Thus, the court below erred in the misapprehension of legal principles by misapprehending the legal principles after hearing's the first instance's order.

[1] Articles 117(1) and 118 of the Civil Procedure Act / [2] Articles 117(1) and 118 of the Civil Procedure Act

[1] Supreme Court Order 2015Kadam58 Decided November 18, 2015

Jungdong Industry Co., Ltd.

Seoul Southern District Court Order 2016Kadam1480 dated December 12, 2016

The order of the court below is reversed, and the case is remanded to the Seoul Southern District Court.

The grounds of reappeal are examined.

1. The first sentence of Article 117(1) of the Civil Procedure Act provides, “Where a plaintiff deems it necessary to provide a security for litigation costs, such as when he/she has no address, office, or place of business in the Republic of Korea, or when his/her claim is obviously groundless by the complaint, preparatory documents, or other records of trial, the court shall order the plaintiff to provide a security for litigation costs, upon the defendant’s application.” Article 118 of the same Act provides, “Where the defendant has presented a pleading on the merits or made a statement during the preparatory date for pleading even though he

Therefore, an application for the provision of security in the appellate court shall be possible only when an applicant could not apply for the provision of security without negligence, or where a new cause for the provision of security has occurred in the appellate court (see Supreme Court Order 2015Kada58, Nov. 18, 2015).

2. The court below rejected the re-appellant's application for the provision of this case's lawsuit costs of lawsuit filed by the re-appellant, Seoul Southern District Court 2016Na6007, which was the appellate court of the lawsuit filed against the re-appellant, on the ground that the re-appellant had been aware of the grounds for the provision of lawsuit costs of this case at the time when the re-appellant was served with the duplicate of the complaint filed by the respondent, and the re-appellant was not able to present the case's lawsuit on the merits at the first hearing date, and it is insufficient to recognize that the re-appellant was unable

However, upon examining the record, the respondent filed a lawsuit against the re-appellant in the first instance court of the case on the merits from January 2007 to December 2, 2009 seeking payment of the amount below the minimum wage and the amount of value-added tax reduced. The first instance court held two dates for pleading and dismissed the respondent's claim on the ground that the respondent's wage claim is obvious that the three-year extinctive prescription period has expired after hearing the case two times for about one year, and the first instance court dismissed the case on the ground that the respondent's wage claim was obvious. The respondent appealed appealed filed an application for the lawsuit seeking payment of lawsuit costs security with Seoul Southern District Court 2016Kadam1480 before the first date for pleading, and the above court dismissed the application for payment of lawsuit costs of the re-appellant's lawsuit on the grounds as seen earlier.

In light of the above circumstances, it is hard to see that the Respondent's claim constitutes a case where it is evident that there is no reason based on the written complaint, brief and other records of trial at the time of the first instance trial of the merits case, and the re-appellant asserts that although the Respondent filed a written statement of grounds of appeal and other documents after the appeal by the Respondent, the wage claim did not expire after the expiration of the statute of limitations, or that there is no reason for interruption of prescription, the re-appellant did not explain that the claim of the Respondent would be additionally required since the Respondent was first appointed a law firm as the legal representative at the appellate trial, and the re-appellant did not know that the Respondent's claim was groundless after the first instance trial of the first instance, and

After examining whether the court below ordered the respondent to provide litigation costs, it should have judged whether to accept the application for the provision of lawsuit costs of this case. However, the court below did not err by misapprehending the legal principles on the interpretation and application of Articles 117(1) and 118 of the Civil Procedure Act, which affected the conclusion of the judgment, on the erroneous premise that the re-appellant knew that the grounds for the provision of lawsuit costs of this case were unlawful by simply delivering a copy of the complaint filed by the respondent. The court below's order is erroneous by misapprehending the legal principles on interpretation and application of Articles 117

3. Therefore, the order of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Jae-hyung (Presiding Justice)