How are costs divided when both sides appeal and both appeals fail? Decision 2018Da271657 on a marked difference in the ranges contested

Question

Articles 98 to 100 of the Civil Procedure Act govern the bearing of litigation costs. Article 98 provides that the losing party bears the costs of litigation. Article 99 allows the court, according to the circumstances, to make the successful party bear all or part of the costs arising from acts unnecessary to increase or preserve its own rights, or from acts by the other party necessary to increase or preserve that other party's rights. Article 100 allows the court, where the litigation was delayed because a party failed to submit attacks or defences at a proper time, neglected the observance of a date or period, or is otherwise responsible for the delay, to make the successful party bear all or part of the costs caused by the delay. Against that background, the question is how a court should order the costs of an instance when it dismisses the appeals of both sides from a judgment that granted part of a claim.

Decision 2018Da271657 raises that question. The plaintiff claimed KRW 527,676,460 with delay damages from the defendant. The Daejeon High Court, by its judgment of 29 August 2018 (2016Na13978), granted KRW 24,553,808 with delay damages and dismissed the remainder of KRW 503,122,652 with delay damages. Both parties appealed against the part each had lost, and the Supreme Court, while dismissing both appeals, turned of its own motion to how the costs of the appeal should be borne.

Material to check

The statutes are Articles 98, 99 and 100 of the Civil Procedure Act: the loser bears the costs of litigation (Article 98), with the two exceptions in Articles 99 and 100 for costs attributable to unnecessary or to necessary steps of the successful party and for costs caused by delay for which a party is responsible. The texts read for this brief give these articles in their current form, in force from 2 October 2026. The order the decision cites, Decision 2016Ma1854, applies Article 102(1) of the Civil Procedure Act, the provision under which co-litigants bear costs in equal shares unless the court orders otherwise.

The decisions are the decision itself, Decision 2018Da271657 (3 April 2019), and the authorities it cites. Decision 95Da38233 (23 January 1996) held that an appeal against the ruling on costs is allowed only where the appeal against the merits is wholly or partly well-founded, and is not allowed where the appeal against the merits is unfounded; its other holdings concerned the ordinary measure of damage in tort, which is not at issue here. Decision 91Ma277, whose text could not be opened, is cited by number only. Decision 2016Ma1854 (21 November 2017), an order, held that where the disposition merely says that the costs are to be borne by the co-litigants, they bear them in equal shares against the other party and settle their internal shares by agreement and substantive law, and that the procedure to fix the amount of costs can determine only the sum to be reimbursed and cannot examine, decide or alter the scope of the reimbursement obligation itself fixed by the ruling on costs.

Possible readings

A first reading follows the constraints on a costs ruling. An appeal against that ruling lies only when the appeal against the merits is wholly or partly well-founded (Decision 95Da38233), and the later procedure for fixing the amount of costs cannot reopen the scope of the reimbursement obligation (Decision 2016Ma1854). The decision draws the consequence: when a court completes a case it must set the burden carefully, having regard to the principles the Civil Procedure Act lays down, including that the loser bears the costs, and also to the shape and course of the litigation and, on appeal, to the range of the matter contested, so that no substantive unfairness or inequality remains between the parties.

A second reading describes current practice, as the decision records it. Where a judgment grants part of a claim, both sides appeal against the parts lost, and the appellate court dismisses both appeals, the ruling on costs of that instance almost without exception makes each appellant bear its own costs; the plaintiff and the defendant then, absent special circumstances, bear what each has spent themselves and cannot claim reimbursement from the other side.

A third reading is the decision's answer to the unfairness that practice creates. Where both appeals are dismissed but the ranges the parties contested differ markedly, so that the party who contested the smaller range has in substance prevailed over a much larger range, the party that contested less is made worse off in bearing and recovering costs than if it had not appealed at all, purely because the other side happened to appeal as well and both appeals failed. In such a case the court should not simply order each party to bear its own costs: it should instead order each party to bear the costs of the appeal caused by its own challenge, or combine both sides' appeal costs and apportion them appropriately in proportion to the ranges contested.

What the decisions held

On the merits, the Supreme Court dismissed both appeals. It upheld the court below's rejection of the plaintiff's argument that the parties had agreed that the defendant would pay the plaintiff a settlement sum by way of settlement money, part of which was to be paid by 31 December 2013, holding that this finding disclosed no error in the law of formation of contract, interpretation of declarations of intention, probative value of evidence or withdrawal of a partner from a partnership, and no error of fact or law affecting the judgment, such as insufficient examination, departure from the limits of free evaluation of evidence, breach of the rules of evidence or breach of the duty of clarification. It likewise upheld the court below's partial allowance of the claim for the agreed price of medical treatment, finding no error in the law of set-off or unjust enrichment and no breach of the rules of experience or insufficient examination.

The Court then dealt with the costs of the appeal of its own motion. It stated the framework: a challenge to a ruling on costs is allowed only where the appeal against the merits is wholly or partly well-founded and not where that appeal is unfounded (Decision 95Da38233 and others), and the procedure to fix the amount of costs can set only the sum to be reimbursed and cannot alter the scope of the reimbursement obligation (Decision 91Ma277 and Decision 2016Ma1854 and others); a court completing a case must therefore set the burden carefully in the light of the principles of the Civil Procedure Act, the shape and course of the litigation and, on appeal, the range contested.

Applied to this case, the Court found a marked difference in the ranges contested on appeal. The plaintiff's claim of KRW 527,676,460 with delay damages had been granted only as to KRW 24,553,808 with delay damages and dismissed as to KRW 503,122,652 with delay damages, and both sides had appealed against their respective losses. Ordering each party to bear its own appeal costs would produce an unreasonable result, so the Court ordered instead that, out of the costs of the appeal, the portion due to the plaintiff's appeal be borne by the plaintiff and the portion due to the defendant's appeal be borne by the defendant. The reporting Justice was Justice Yi Ki-taek, and the judgment was unanimous.

Points left open

The decision offers two forms of order — each party bearing the costs caused by its own challenge, or one combined pool of appeal costs apportioned in proportion to the ranges contested — and does not state when one is to be preferred over the other. It also does not say how the proportion between the ranges contested is to be measured, whether by the amounts claimed and allowed, by some other yardstick, or how far a marked difference must go before the adjustment is called for.

The decision speaks of a case in which both appeals are dismissed and leaves undecided what happens where an appeal is granted in part, or where the imbalance in the burden arises at first instance among co-litigants, a setting Decision 2016Ma1854 addressed through the proviso to Article 102(1) of the Civil Procedure Act. It does not consider how the two discretionary exceptions in Articles 99 and 100 would interact with the adjustment it describes.

When to reconsider

This brief is revisited if a later Supreme Court decision or rule fixes the measure of a 'marked difference' in the ranges contested or a formula for apportioning the combined costs, or if a later decision applies or refuses the adjustment where one appeal is granted in part, or if Articles 98 to 100 of the Civil Procedure Act are amended.

Statutes referred to

• 민사소송법 제98조, 제99조, 제100조

Decisions referred to

• 대법원 2019. 4. 3. 선고 2018다271657 판결 · Decision ledger
• 대법원 1996. 1. 23. 선고 95다38233 판결
• 대법원 2017. 11. 21. 자 2016마1854 결정

Verification status

The articles were read in their current text at the National Law Information Center on 24 October 2026, and the decision in its published headnote, summary and full reasons, together with the cited decisions in their published holdings and summaries. The text of Decision 91Ma277 could not be opened, so it is cited by number only.