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| TITLE | Supreme Court Decision 2023Da298670 Decided April 4, 2024 【Agreed Remuneration】 [full Text] |
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| Summary | |
| 【Main Issues and Holdings】 [1] Where an act of disposing of both property acquired by residents in North Korea by inheritance, etc. and property acquired as the price for the disposal of the property was done other than through an estate administrator in accordance with Article 15 of the Act on Special Cases Concerning Family Relationship and Inheritance Between Residents in South and North Korea, whether such act should be deemed null and void (affirmative), and whether the aforementioned legal doctrine is likewise applicable even in a case where such juristic act was conducted before the appointment of an estate administrator (affirmative) [2] Meaning of the term “the intention of the parties” as referred to in Article 137 of the Civil Act, stipulating the legal doctrine regarding partial nullity Whether the legal doctrine of partial nullity of a juristic act is applicable in a case where several contracts in full were conducted integrally from the economical and realistic perspective and thus appear to be in one contractual relationship (affirmative) [3] Where a contentious case was entrusted to an attorney-at-law, even if there was no explicit agreement entered upon between the parties as to the payment and the amount of remuneration, whether there should be seen to have been any implicit agreement between the parties in relation to the payment and the amount of remuneration (affirmative in principle) and, in such a case, method of determining the amount of remuneration [4] In a case where Party B and others, who are North Koreans, subject to the Act on Special Cases Concerning Family Relationship and Inheritance Between Residents in South and North Korea, concluded a mandate contract, by which Law Firm A should handle a claim seeking confirmation of paternity, a claim for recovery of inheritance, etc. against Party C, entrusted by Party B and others, and a contingent fee agreement, by which Party B and others should pay “30% of the total share of inheritance or the amount of money equivalent thereto” as fees contingent on success to Law Firm A; thereafter, as the reconciliation is established among the inheritors of Party C, inherited property was divided into Party B and others, and, in response thereto, Law Firm A demanded the payment of the amount of money, corresponding to 30% of the total share of inheritance, according to the above contingent fee agreement against Party B and others; however, Party B and others alleged that the above contingent fee agreement corresponds to a legal act done other than through an estate administrator with regard to inherited property, and thus such legal act should be deemed void in accordance with Article 15 of the Act on Special Cases Concerning Family Relationship and Inheritance Between Residents in South and North Korea, the case holding that in view of overall circumstances, even if the above contingent fee agreement is deemed void, there is room to see that both parties had any hypothetical intention to intend to conclude and maintain the above mandate contract, and there can be seen to have been any implicit agreement between the parties in relation to the payment of reasonable remuneration | |
