[1] The meaning of "judgment on litigation costs" in civil procedure

[2] The case holding that the re-appellant Gap's act of appointing a lawyer before the Respondent Eul's withdrawal of appeal and submitting a preparatory document after reviewing the case constitutes delegated affairs and the attorney's fees paid in relation thereto should be included in the litigation costs under the main sentence of Article 3 (2) of the "Rules on the Calculation of Litigation Costs" as expenses incurred in conducting a lawsuit

[1] Article 104 of the Civil Procedure Act / [2] Article 3 (2) of the Rules on the Inclusion of Litigation Costs in Attorney Fees

[1] Supreme Court Decision 84Ka55 delivered on July 9, 1985

Re-appellant

Other Party

Seoul High Court Order 2010Kaba52 dated January 15, 2010

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

The grounds of reappeal are examined.

1. In a civil lawsuit, a trial on the costs of the lawsuit is to determine ex officio the burden or apportionment ratio in the judgment closing the case so that the party to the civil lawsuit, who is in conflict, can receive reimbursement from the other party, the party, or a third party involved in the lawsuit within the scope necessary for the performance of the lawsuit (see Supreme Court Decision 84Da55 delivered on July 9, 195, etc.).

Meanwhile, Article 3(2) of the Rules on the Inclusion of Costs of Trial by Attorney Fees (hereinafter “Rules on Attorney Fees”) provides that “In the case of a request for provisional seizure, provisional disposition order, an objection to or cancellation of such order, the fees of the attorney to be included in the costs of trial shall be 1/2 of the amount calculated according to the standards of paragraph (1) according to the value of the preserved right: Provided, That in the case of a request for provisional disposition order, it shall be limited to the case of pleading or examination.”

2. According to the reasoning of the lower judgment, the lower court determined that, in the instant appeal case, the attorney’s fees cannot be included in the litigation costs pursuant to the proviso of Article 3(2) of the Rules on Attorney Fees, since the instant appeal case involving provisional attachment No. 2009Ra688 (hereinafter “instant appeal case”) was concluded without going through the trial following the Respondent’s withdrawal of appeal.

3. However, in a case of provisional attachment or provisional disposition order, only where the case was proceeded without pleading or examination (in such a case, the case does not have the form of a major structure of lawsuit), the attorney's remuneration cannot be included in the litigation costs under the opposite interpretation of the proviso of Article 3 (2) of the Rules on Attorney Remuneration only for the case where the case was brought without pleading or examination (in this case, the case of appeal of this case is subject to an in-depth litigation structure in which the other party in dispute is guaranteed the opportunity to attack and defend for the extension of his/her rights in the lawsuit. On the other hand, the case of this case constitutes an in-depth litigation structure in which the other party in dispute substantially conflicting has been guaranteed the opportunity to attack and defend for the extension of his/her rights in the lawsuit. The re-appellant's appointment of a lawyer before the withdrawal

Therefore, the lower court erred by misapprehending the legal doctrine regarding the inclusion of attorney fees in litigation costs, thereby adversely affecting the conclusion of the judgment.

4. 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 Lee Hong-hoon (Presiding Justice)