What must an applicant show to obtain litigation aid when defeat is said to be obvious? Decision 2018Mu635 on 'not obviously bound to lose'

Question

Article 128(1) of the Civil Procedure Act provides that the court may grant litigation aid, on application or ex officio, to a person who lacks the funds to bear litigation costs, but not where the case is one of clear defeat, and Article 128(3) requires the applicant to give prima facie proof of the grounds for aid. Article 8(2) of the Administrative Litigation Act applies those provisions to administrative litigation. The question is what the applicant must show on the negative condition that defeat is not obvious, and whether losing at first instance makes defeat obvious on the appeal.

Decision 2018Mu635 raises that question for three applicants: a woman from the Republic of Guinea and her two minor daughters, who sued the Director of the Daegu Immigration Office over a refusal to recognise them as refugees, lost at first instance, and applied for litigation aid to pay the stamp fee on their appeal. The court of first instance and the court below refused the aid, treating the applicants' material as insufficient.

Material to check

The statutes are Article 8 of the Administrative Litigation Act, under which matters for which the Act has no special provision are governed mutatis mutandis by the Court Organisation Act, the Civil Procedure Act and the Civil Execution Act, and Article 128 of the Civil Procedure Act on the conditions for aid. As the decision cites it, Article 128(1) requires lacking funds to bear litigation costs and not being obviously bound to lose; the current text keeps the same conditions, adds a paragraph 2 (18 April 2023) denying aid for the costs of the aid application itself and of an objection under Article 133 where the proviso applies, restates in paragraph 3 that the applicant must give prima facie proof of the grounds for aid, and leaves details to Supreme Court Rules.

The decisions are Decision 2018Mu635 and the two it draws on: Decision 2001Ma1044 (9 June 2001), an order holding that not being obviously bound to lose is a negative condition of aid, that the applicant need not affirmatively show prospects of success, and that losing at first instance does not raise a presumption of obvious defeat on appeal, and which also holds partial aid possible; and Decision 2016Du42913 (5 December 2017), a judgment on the refugee requirement, cited for the meaning of 'persecution'.

Possible readings

Read with Decision 2001Ma1044, the condition that the applicant is not obviously bound to lose is negative. The applicant does not have to state and prove prospects of success affirmatively; the condition is satisfied unless the court, on the material produced in the proceedings so far, can find that defeat is obvious. On that reading the burden on the applicant is light, and the refusal of aid turns on the court's own assessment of the record.

A second reading follows from the nature of the appeal. The court hearing the appeal reviews the case afresh, so new claims and evidence not put before the court of first instance may in principle be submitted there. The fact of losing at first instance therefore does not, by itself, support a finding that defeat on appeal is obvious; the court must weigh the reasons for the application and the applicant's material together with the pleadings and evidence in the main action, to decide whether defeat on the appeal is certain.

A third reading concerns the funds condition and comes from the decision's application. It suffices that the applicant gives prima facie proof of lacking means, and the decision treated a foreign national whose period of stay had expired, who had two young daughters to support and whose husband was said to be unable to work after injuring his leg, as having proved that point even without detailed supporting documents. On the merits side, Decision 2016Du42913 states that 'persecution' in the refugee requirement means acts threatening life, body or liberty, or seriously violating essential human dignity or causing discrimination; the decision drew from this that the outcome may change with what is alleged and proved, so defeat could not be called obvious given the nature of the case.

What the decisions held

Decision 2018Mu635, an order of the Supreme Court of 16 August 2018, set aside the order of the Daegu High Court of 10 April 2018 (2018Lu111) and remitted the case to that court. It held that the requirements for litigation aid under Article 128(1) of the Civil Procedure Act, applied through Article 8(2) of the Administrative Litigation Act, are lack of funds to bear litigation costs and not being obviously bound to lose, that the latter is a negative condition, and that losing at first instance does not raise a presumption of obvious defeat on the appeal.

On the record, the first applicant, from the Republic of Guinea, entered the Republic of Korea on 23 November 2013 in 'general training (D-4)' status with stay expiring on 23 May 2014, and gave birth to her two daughters in Korea; the Director of the Daegu Immigration Office refused refugee recognition on 15 April 2016; the Daegu District Court dismissed their revocation action, finding no well-founded fear of persecution on grounds of race, religion, nationality, membership of a particular social group or political opinion; they appealed on 26 February 2018 and applied for aid, stating in their property statement family circumstances and, in the immediate appeal after the first refusal, that their husband had injured his leg and could not work and that rent arrears were mounting.

Applying the rule, the Supreme Court held that the applicants had made prima facie proof of lacking means, and that they could not be said to be obviously bound to lose: the appeal court could receive new claims and evidence, and since the point in dispute was the refugee requirement, including 'persecution' as defined in Decision 2016Du42913, the result could vary with what was alleged and proved. The court below, by maintaining the first-instance refusal without that analysis, misunderstood the law on the conditions for aid and thereby affected the decision; the grounds of the further appeal were well founded. The presiding Justice was Park Sang-ock and the reporting Justice Noh Jeong-hee.

Points left open

The decision leaves the outcome of the aid application to the court on remand. It found the funds condition met and the 'not obviously bound to lose' condition not negated on the material then available; it did not grant aid itself, and it did not decide the refugee claim, which remains for the courts in the main action.

The decision states the standard for the negative condition but does not fix the point at which a record could become strong enough to make defeat obvious. It also speaks of applicants who are a foreign national and her young children; how the funds condition is assessed for applicants in other circumstances, and how much material is needed where the applicant submits no detailed documents, is not answered. The texts read for this brief do not show any later application of these holdings.

When to reconsider

We revisit this brief if the court on remand rules on the aid application or the refugee claim, if the Supreme Court later decides what degree of material makes defeat obvious or applies the standard to other kinds of applicant, or if Article 128 of the Civil Procedure Act or Article 8 of the Administrative Litigation Act is amended again, including the paragraphs added in 2023.

Statutes referred to

• 행정소송법 제8조
• 민사소송법 제128조

Decisions referred to

• 대법원 2018. 8. 16. 자 2018무635 결정 · Decision ledger
• 대법원 2001. 6. 9. 자 2001마1044 결정

Verification status

The texts read for this brief were read at the National Law Information Center on 24 October 2026: the decision's published items, full text and cited provisions and precedent, and the current text of Article 8 of the Administrative Litigation Act and Article 128 of the Civil Procedure Act. The decision states the condition at issue as one of being 'not obviously bound to lose', while the current text of Article 128(1) withholds aid 'where defeat is clear'.