208Na85613 Agreements

Law Firm 00

Seoul

Representative Attorney Gangwon-at-Law

Kim 00 (00000 - 000000)

Seoul

Attorney Kim Young-il, Counsel for the plaintiff-appellant

Seoul Central District Court Decision 2007Gadan284990 Decided September 10, 2008

May 8, 2009

May 29, 2009

1. Of the judgment of the court of first instance, the part against the defendant ordering payment to the plaintiff in excess of 18,100,000 won, and 5% per annum from May 31, 2007 to May 29, 2009, and 20% per annum from the next day to the date of full payment. The plaintiff's claim corresponding to the above revoked part is dismissed.

2. The defendant's remaining appeal is dismissed.

3. The total costs of the lawsuit shall be divided into four equal parts, and three equal parts shall be borne by the plaintiff, and the remainder by the defendant respectively.

1. Purport of claim

The Defendant’s KRW 89,100,000 and its duplicate from May 31, 2007 to the Plaintiff.

5% per annum and 20% per annum from the following day to the date of full payment.

H. D. D.

2. Purport of appeal

Of the judgment of the court of first instance, 6,000,000 won for the plaintiff and 5% per annum for the defendant

cancellation of the part against which the defendant ordered payment in excess of the money has been ordered, and

The plaintiff's claim is dismissed.

1. Facts of recognition;

The following facts are not disputed between the parties, or may be acknowledged by comprehensively taking into account the whole purport of the pleadings in each entry in Gap evidence 1, 2, and 3-1, 4-2, Gap evidence 5-1, 2, Eul evidence 1, 4-1, 4-1, and 2, respectively:

A. 00 (hereinafter referred to as "00") is a company that newly constructs 4 stories underground and 14 stories above the 14th floor above the ground in Seoul, and the Korean Asset Trust Co., Ltd. (hereinafter referred to as "Korea Asset Trust Co., Ltd.") entered into a trust agreement with the O on the instant officetel. The Defendant lent 1.72 billion won to February 6, 2007 with the instant officetel new construction funds, while lending 1.7 billion won from 00 to 1.7 billion won for the instant officetel new construction funds.

4.5. 5. The interest rate of 3% per month, and 5% per month after the due date for payment. The O issued a certificate of confirmation stating the above contents. The O issued to the Defendant a promissory note of 2 billion won per face value as security for the above borrowed amount. On the other hand, among the officetels of this case, the sales contract was provided with 601, 701, 705, and 801 among the officetels of this case, and the Defendant agreed not to dispose of 1006 among the officetels of this case until the above borrowed amount is repaid. However, with respect to the above 601, 701, 705, and 801, which are offered to the Defendant as security, the ownership transfer registration was made in the name of other creditors as a right to preserve the ownership, and the ownership transfer registration was made in the future on March 8, 2007.

B. On March 13, 2007, the defendant, who became aware of the above fact, entered into a delegation contract (hereinafter "the first delegation contract") entrusting the Plaintiff with a real estate claim against the Korea Assets Trust (hereinafter "the "the first delegation contract"). The defendant, upon which he came to know of the above fact, paid 10 million won with the retainer (the recognition of value-added tax in the event of success) (Article 6 of the agreement),

In accordance with the first delegation contract, the Plaintiff borrowed KRW 1,720,00,00 to 0 on February 6, 2007, and paid KRW 00 to 1,720,00,000 between 00 and 00 on April 5, 2007; the interest rate shall be KRW 3% per month; the interest rate after the due date shall be KRW 5% per month; the interest rate after the due date shall be KRW 2 billion shall be KRW 5% per month) on behalf of 00 on behalf of the Korea Asset Trust as the right to preserve the ownership transfer registration right on the ground of the termination of trust with respect to the Korea Asset Trust, and received an application for provisional injunction or provisional injunction from Seoul Southern District Court Decision 2007Kahap737 as the right to preserve the ownership transfer registration right on the ground of the termination of trust with respect to the instant officetel, and received an application for provisional injunction or injunction from the Seoul Southern District Court 201, 2007.

C. On April 3, 2007, the Defendant entered into a delegation contract (hereinafter referred to as the "second delegation contract") with the Plaintiff to delegate the case of applying for provisional injunction against the transfer of real estate assets trust to the Plaintiff on April 3, 2007, in order to obtain a provisional injunction to the same effect as to the head office not included in the provisional injunction, among the instant officetels, and made a payment of KRW 1 million with the starting money (Article 6 of the Agreement), ② as a result of the provisional injunction with the performance payment, ② as a result of the provisional injunction, the Defendant entered the contract into a separate delegation agreement with the Plaintiff on April 2, 2007 (Article 1 of the Agreement).

In accordance with the second delegation contract, the Plaintiff filed a provisional injunction against the disposal of real estate on April 11, 2007 with the Seoul Southern District Court Decision 2007Kahap950 against the Korea Asset Trust with the right to claim the registration of transfer of ownership as the preserved right. The Plaintiff received a provisional injunction on April 11, 2007 without any separate pleading or examination procedure as to the said 29 rooms except the said 3 rooms among the instant officetels.

D. After that, while the Korea Asset Trust intended to pay KRW 2 billion to the Defendant, the Defendant refused to receive the payment. On May 29, 2007, the Korea Asset Trust deposited KRW 2 billion with the Defendant as the principal deposit account under the Seoul Central District Court No. 8437, May 29, 2007, and the Defendant paid the said deposit without delay of objection on May 31, 2007.

E. On June 12, 2007, the Seoul Southern District Court 2007Kahap1512, and 1513 filed an application for cancellation of each of the above provisional dispositions due to the above repayment deposit, and on June 12, 2007, the above court revoked the above provisional disposition order on the condition that the Korean asset trust provides KRW 200 million as a collateral for the defendant, "the above provisional disposition order was revoked," and on June 13, 2007, the provisional disposition order was revoked, and then the registration of each of the above provisional dispositions was revoked.

2. The parties' assertion

A. The plaintiff's assertion

Despite the Plaintiff’s success in delegated affairs under each of the above delegation contracts upon receipt of each of the above provisional dispositions, the Defendant has the obligation to pay 10 million won (10 million won + value added tax of 10 million won + value added tax of 1 million won) under the first delegation contract, excluding the remainder of 5 million won already paid, and 20 million won (20 billion won + value added tax of 20 billion won + value added tax of 20 million won) under the second delegation contract, 1.1 million won (1 million won + value added tax of 1 million won + value added tax of 1 million won + value added tax of 1 million won) under the second delegation contract, 60 million won + performance remuneration of 20 million won + performance remuneration of 1 million won to the Plaintiff. Therefore, the Defendant did not pay the Plaintiff the remainder of 6 million won + performance remuneration of 1 million won.

B. At the time of concluding the first delegation contract with the Defendant’s assertion (1) that the Defendant had expressed that the principal to be repaid from 00 billion won was to be paid to the Plaintiff, and that it would be adequate to take sufficient provisional disposition taking into account the agreement up to the date of completion, litigation costs up to the final trial, and other civil execution costs. However, among the items presented by the Defendant, the Plaintiff filed an application for provisional disposition with respect to the above 101, 102, and 101, the Seoul Southern District Court 207Kahap737, Seoul Southern District Court (2007Kahap737). However, the above 3 rooms alone require the Plaintiff to file an application for provisional disposition with respect to the total amount of items already presented to the Plaintiff, and the Defendant concluded a second delegation contract with the Plaintiff to the same effect as to the remainder of items except for the above 3 rooms in favor of the Plaintiff, and thus, the Plaintiff would be paid at least 1% of the amount agreed upon as the result of each contract’s performance in advance payment.

(2) Article 7 of the first delegation contract provides that "If the delegated affairs are successful in the judgment, judicial or extra-judicial reconciliation (including a recommendation for reconciliation), mediation (including a decision in lieu of conciliation), etc., 1% of the value of economic benefits acquired by winning the contract shall be paid (value added tax separate)" as the contingent judgment under Article 7, or the decision in lieu of a recommendation for reconciliation or mediation is not a case where the decision in the first delegation contract does not constitute a final judgment under Article 7, or where the decision in lieu of a recommendation for settlement or mediation. Thus, Article 1 of the second delegation contract clause of the second delegation contract provides that "if the entrusted affairs are paid in full as a result of a provisional disposition, 3% of the amount received shall be immediately paid as a result of the provisional disposition as a result of performance remuneration, the defendant shall receive 2 billion won of the principal and other expenses received from theO, and the defendant shall also receive 2 billion won of the final amount of the principal and other expenses received as well as 2 billion won of the final contract."

(3) Reduction of contingent remuneration

In the event that the Plaintiff accepted the application for each of the above provisional dispositions from the Defendant, and received the above provisional disposition order, but did not make any effort and did not have any legal outcome, the agreement on the contingent remuneration is null and void in violation of the principle of trust and good faith or the principle of equity, and even if the above agreement is valid, the contingent remuneration that the Plaintiff seeks to pay should be reduced unfairly because it is excessive.

(4) The case of revocation of provisional disposition filed by the Korea Assets Trust following the revocation of provisional disposition was rendered a decision of revocation of provisional disposition because the plaintiff failed to properly respond to the case of revocation of provisional disposition. Since the decision of provisional disposition was revoked due to the failure of the plaintiff to perform his/her duty of trust and good faith against the defendant who is the client, the plaintiff cannot respond to

3. Determination:

A. Whether each delegation contract is substantially a single delegation contract

As seen earlier, the parties to each delegation contract, the right to be preserved, and the necessity for preserving the above rights are the same, and there is no evidence to acknowledge that the Plaintiff applied for provisional disposition only to the above 101, 102, and 3 units among the items presented by the Defendant at will, among the items presented by the Defendant,. Rather, according to the evidence evidence No. 2, the sum of the values of the above three units units subject to the application for provisional disposition by the first delegation contract on March 13, 2007 can be recognized as constituting 2,910, 496, 400 units of the above three units of rooms, which are subject to the application for provisional disposition under the delegation contract on April 5, 2007, it appears that the Plaintiff applied for provisional disposition to the effect that the above three units of rooms should be repaid to the Defendant by not later than 2,00,000,000 won, and it appears that there is no need to separately conclude the provisional disposition contract on the same subject matter as the above three units of delegation contract concluded with the Plaintiff.

(b) In the case of a first delegation contract whether the conditions for the payment of contingent remuneration have been fulfilled (1)

Article 7 of the first delegation contract provides that "if the delegated affairs are successful through a judgment, a settlement by judicial or extra-judicial court (including a decision of recommending reconciliation), a mediation (including a decision in lieu of a mediation), etc., 1% of the value of economic benefits acquired in favor of the winning party shall be paid as above."

However, the defendant asserts that the provisional disposition does not constitute a case where the above Article 7 was rendered only with the above decision of provisional disposition. However, as seen above, the defendant had the intention to obtain a loan through the pressure method of provisional disposition that prevents disposal of real estate by making provisional disposition under the first delegation contract and as seen above, unlike the special agreement stipulating that "in case where the defendant receives a total amount of damages for this case due to provisional disposition" as the condition of payment of performance fees in the second delegation contract, "in case of the first delegation contract, it is not divided into whole or part, or in case of the winning, it is not divided into one percent of the economic profit amount acquired by winning the loan ( separate value-added tax)". However, as the first delegation contract and the first delegation contract, the defendant agreed that "the commencement amount shall be refunded at the time when the provisional disposition becomes known", and it can be seen that the defendant would have received 200 million won from the first delegation contract through 200 million won, not from the original disposal of real property profit amount under the above provisional disposition 300 billion won.

On the other hand, as seen earlier, the first delegation contract does not stipulate a special agreement such as "if a person receives a total amount of damages" as a condition for the payment of contingent remuneration, and when considering the difference between interest and delay damages, and the amount which the person agreed to pay once to the defendant by April 5, 2007 to the defendant by April 5, 2007, it is reasonable to view that "the economic benefit value" under Article 7, which serves as the basis for the calculation of contingent remuneration, is two billion won of the above deposit withdrawn by the defendant.

(2) In the case of a second delegation contract:

In the second delegation contract, unlike the first delegation contract, the terms and conditions of "in case of receiving full amount of damages for this case" as the condition for the payment of performance-based remuneration, and as mentioned above, the second delegation contract was concluded, the background that the second delegation contract is stipulated to pay 1% of the value of economic benefits acquired by winning the first delegation contract, the background that the first delegation contract provides for "an amount equivalent to 3% of the value of economic benefits acquired by winning the contract (value added tax separate)" and "in case of partial winning the contract" in Article 7, "an amount equivalent to 0% of the value of economic benefits acquired by winning the contract (value added tax separate)" and "an amount equivalent to 0% of the value of economic benefits acquired by winning the contract" and "in case of full winning the contract, it is not necessary to conclude the second provisional disposition with the plaintiff and the defendant to pay 0% of the amount of damages for the first delegation." In light of the above special agreement and special agreement, it is not necessary that the defendant made a separate correction of the above amount of damages to the plaintiff.

However, in full view of the overall purport of the pleadings in the statement in Eul evidence No. 5, the defendant shall be paid KRW 2 billion between the O and the O until April 5, 2007, and the interest rate shall be KRW 3% per month; the interest rate after the due date for payment shall be KRW 5% per month; the Korean assets trust shall have deposited only KRW 2 billion on May 29, 2007, excluding interest and delay damages on May 29, 2007; and the defendant appointed a lawyer as the legal representative and confirmed the fact that the defendant received some favorable judgments against the above 00 billion and the Korean assets trust by filing a separate civil lawsuit claiming interest, delay damages, etc. on KRW 2 billion. Thus, it is determined that the conditions for the payment of contingent remuneration under the second delegation contract have not been fulfilled.

Therefore, the defendant is not obliged to pay the plaintiff the contingent remuneration under the second delegation contract.

(c) Reduction of contingent remuneration under the first delegation contract;

As seen earlier, the Plaintiff entered into the first delegation contract with the Defendant and completed legal review of the right to be preserved for the provisional disposition, and subsequently 00 representation for the preservation of the loan claims against the Defendant, and received the provisional disposition order by filing an application for provisional disposition against the trust of assets in Seoul Southern District Court 2007Kahap737 with the Seoul Southern District Court as Seoul Southern District Court 2007Kahap737 on the ground that the right to claim ownership transfer registration on the ground of the termination of the trust with respect to the trust of assets in Korea is preserved for the preservation of the loan claims against 00. Thus, the Defendant’s above assertion that the agreement to pay the contingent remuneration without making any effort is null and void in violation of the principle

Meanwhile, in a case where there is an agreement with the client on the remuneration for the handling of delegated affairs, an attorney-at-law who completed the delegated affairs may claim the agreed amount in full, barring any special circumstance. However, in a case where there is a special circumstance to deem that the agreed amount of remuneration is unduly excessive and thus contravenes the principle of good faith or the principle of equity, the attorney-at-law who completed the delegated affairs may claim only the amount of remuneration within the reasonable scope, exceptionally recognized, in light of the relationship with the client, the background leading up to the conclusion of the case, the amount of the case, the progress and difficulty in the handling of the case, the degree of effort, the value of the subject matter of lawsuit, the specific interest gained by the client in favor of the client, the rules on the fees of the affiliated attorney-at-law meeting, and all other circumstances revealed in the pleading (see Supreme Court Decision 200Da50190,

However, as seen earlier, the plaintiff's work, after conducting legal review of the right to be preserved for provisional disposition, prepared an application for provisional disposition and received it to the court in full and without undergoing separate pleadings or examination procedures. Unlike Seoul Southern District Court 2007Kahap737, it is not likely that the application for provisional disposition was difficult or many efforts were needed. Article 3 (2) of the Rules on the Inclusion of Attorney's Fees into Litigation Costs provides that "in case of an application for provisional disposition order, the above rules shall apply only where pleadings or examinations are conducted." The provisional disposition order on March 19, 2007 under the first delegation contract is made without oral proceedings or examination and the above rules cannot be applied. However, considering the circumstances revealed in the arguments in this case such as the above rules, the amount of contingent remuneration should be calculated as value-added tax of 1%, 200,000 won, and the amount of contingent remuneration of 10,000 won, 200,000 won x 10,000 won.

D. Whether exemption is granted following the cancellation of provisional disposition

I will examine whether the plaintiff did not properly respond to the case of revocation of provisional disposition filed by the Korea Asset Trust against the above provisional disposition order.

Comprehensively taking account of the overall purport of the arguments in Gap evidence 5-1, 2, 11, 2-1, 2-1, 3-2, and 3, the Seoul Southern District Court 2007Kahap1512, which was raised by the Korea Asset Trust.

The date of revocation of provisional disposition No. 1513 was served on the Plaintiff on May 28, 2007 by the notice on the date of examination of the case of revocation of provisional disposition (as of May 31, 2007: 30). However, the Defendant dismissed the Plaintiff who was represented by the Defendant in the case No. 2006Gadan474192 on the same day, and the Defendant dismissed the Plaintiff who was represented by the Defendant’s litigation on the same day. The Defendant was prior to the above examination date.

30. The fact that the application for the change of the date of examination was submitted to the above court, and the decision of revocation of the provisional disposition on June 12, 2007 was made, the defendant may recognize the fact that the defendant appointed the law firm official music and submitted the legal brief on June 15, 2007 and the written brief on June 18, 2007, and withdrawn the above appeal on July 12 of the same year. In light of the above facts of recognition, in addition, in light of the above facts, the defendant can be deemed to have a time to respond to the above case of revocation of provisional disposition to the extent that the plaintiff would file an application for change of the date before the above date of examination. In addition, since the plaintiff was not appointed separately as the agent of the above case of revocation of provisional disposition, the above delegation contract does not state that "the cancellation case shall be a separate delegated business in case of each above case", and as a result, even if the above provisional disposition was revoked, it cannot be attributable to

Therefore, the defendant's assertion that the Korean Asset Trust cannot pay the agreed amount on the ground that the plaintiff failed to respond properly to the case of revocation of provisional disposition filed by the Korea Asset Trust against the above provisional disposition order is not correct.

4. Conclusion

Therefore, the defendant is obligated to pay to the plaintiff 18,100,000 won (6 million won payable out of the advance payment under the first delegation contract + KRW 1,100,000 won + KRW 1,100,000 under the second delegation contract + KRW 1,100,000 under the second delegation contract) and the defendant's claim against the above 2 billion from May 31, 2007, when it is deemed reasonable for the defendant to dispute about the existence and scope of the obligation to perform, until May 29, 2009, which is the date of the final decision of the court of first instance, which is 5% per annum under the Civil Act, and 20% per annum from the next day to the day of complete payment. Thus, the plaintiff's claim of this case is just within the scope of recognition, and the remainder of the above amount shall be paid, and the defendant's claim of this case shall be dismissed by the cancellation of the judgment and the decision of the court of first instance shall be dismissed.

Judges Jo Hee-de

Judge Park Jong-sung

Judges Kim Jae-sub