2020Da282506 Agreements

Plaintiff:

Attorney Han-chul et al., Counsel for the defendant-appellant

Defendant 1 and 25 others

Law Firm Doksan, Attorney Park Jae-san

Attorney Na-soo

Daejeon District Court Decision 2019Na110504 Decided October 22, 2020

on March 25, 2021

All appeals are dismissed.

The costs of appeal are assessed against the Plaintiff.

The grounds of appeal are examined.

1. Grounds of appeal as to the lawsuit trust

A. In a case where an assignment of claim has been made with the primary purpose of having the said assignment of claim for litigation, Article 6 of the Trust Act applies mutatis mutandis even if the said assignment of claim does not fall under a trust under the Trust Act, and thus, is null and void. Whether the primary purpose of having the said assignment of claim is to conduct litigation ought to be determined in light of all the circumstances, including the details and methods of concluding the assignment of claim, interval between the transfer contract and the filing of the lawsuit, and the status relationship between the transferor and the transferee (see, e.g., Supreme Court Decision 2017Da2

B. In full view of the following facts and circumstances, the lower court determined that the assignment of claims between the Nonparty and the Plaintiff was null and void on the ground that it was concluded with the main purpose of litigation.

1) Around 2008, the members of the instant fishing village fraternity, including the Defendants, constituted the instant compensation countermeasure committee in order to receive compensation for fishery damage caused by a nearby thermal power plant, and selected and proceed with the procedures for consultation. Around 2012, the said members entered into the instant agreement with the Nonparty to pay a certain amount of the compensation that they would be paid, explicitly or implicitly, to the Nonparty. However, at the time of the conclusion of the agreement, the said members of the instant fishing village fraternity, which concluded that the damage appraisal procedure and outcome, and the anticipated amount of compensation cannot be paid, cannot be paid. Around March 2015, the members of the instant fishing village fraternity, which held an extraordinary general meeting, dismissed the Nonparty on the grounds that the Nonparty did not act properly, and appointed the Plaintiff as a new representative.

2) Upon completion of the aforementioned compensation procedure on May 2015, the Plaintiff brought the instant lawsuit claiming that he/she succeeded to the status of the Nonparty under the instant agreement, and the Defendants concluded a contract on the transfer of rights with the Nonparty during the course of the lawsuit at the first instance court, and added the claim for the transfer of rights to the Plaintiff.

3) However, according to the above contract of transfer of right, the Nonparty granted the Plaintiff the right to exercise all rights relating to the lawsuit, such as a claim against the Defendants, appointment of a legal representative, etc., but if it is impossible to grant such right, the claim is transferred to the Plaintiff. Even if the Plaintiff won the lawsuit in this case, the Plaintiff agreed not to dispose of the remainder other than the litigation costs out of the judgment amount without the Nonparty’s consent. Meanwhile, it appears that there is no cause relationship between the Plaintiff and the Nonparty to conclude the contract of transfer of claim of this case between the Plaintiff and the Nonparty, and that there is no fact that the Plaintiff paid the Nonparty the compensation therefor.

4) Unlike the Plaintiff’s assertion, the Nonparty appears to have still held the rights against the Defendants. Therefore, it is difficult to deem that there is a motive for the transfer of claims other than obtaining the satisfaction of claims against the Defendants via the Plaintiff.

C. In light of the above circumstances and the reasoning of the judgment of the court below and the following circumstances revealed by the records, namely, the Nonparty was dismissed at the time of the completion of the compensation procedure by going through an agreement for compensation not more than seven years, and the Plaintiff appears to have been practically difficult to claim fees for the instant agreement from the Defendants who appear to have a considerable objection against himself as a member of the local community, and the Plaintiff was sufficiently able to represent the Nonparty’s interest in light of the relationship with the Nonparty, the court below’s determination that the instant assignment of claims constitutes a litigation trust is justifiable, and contrary to what is alleged in the grounds of appeal, there were no errors by misapprehending the legal principles on the trust of a lawsuit, etc.

2. The remainder of the grounds of appeal is nothing more than an error of the selection of evidence and fact-finding, which belong to the lower court’s exclusive jurisdiction, and thus, cannot be a legitimate ground of appeal. Furthermore, in light of the record, the lower court did not exhaust all necessary deliberations, as otherwise alleged in the grounds of appeal, and did not err by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or by misapprehending the legal doctrine regarding the interpretation of contract succession, implied declaration of intent, or by misapprehending the principle of pleading and explanation

3. Conclusion

All appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Supreme Court Decision 201

Justices Kim Jae-in

Justices Min Il-young in charge

Justices Lee Jae-hwan