Open Decision Ledger · Civil procedure & enforcement
The degree of prima facie showing required for the apparent-loss element of aid in litigation on appeal in administrative litigation, and the meaning of a loss at first instance
Translated from the Korean original. Read the Korean
Supreme Court, Aug. 16, 2018, 2018Mu635 (ruling)
No holding summary · checked against points at issue. The official text publishes no summary of the holding for this decision. The quotation and factors in this record are copied verbatim from the points at issue; the evidence for each axis is taken from the points at issue, the order and the reasons.
Case name: 소송구조
Official text on the National Law Information Center
Question
Under aid in litigation pursuant to Article 128 (1) of the Civil Procedure Act as applied mutatis mutandis under the Administrative Litigation Act, can a loss at the appellate stage be presumed to be apparent on the sole ground that the party lost at first instance?
Holding
Because the requirement that a loss is not apparent is a negative requirement, the applicant need not affirmatively demonstrate a possibility of prevailing. Since the appeal is heard on the merits and new allegations and Evidence may be submitted, a loss at first instance alone does not give rise to a presumption that a loss on appeal is apparent, and the Supreme Court reversed the order of the court below that had rejected the application for aid in litigation.
Points at issue, verbatim
제1심에서 패소하였다는 사실만으로 항소심에서도 패소할 것이 명백하다고 추정되는지 여부(소극)
Unofficial English translation
whether the mere fact of having lost in the court of first instance gives rise to a presumption that it is obvious that the party will lose in the appellate instance as well (negative)
Disposition
Reversed and remanded Stated in the decision
원심결정을 파기하고, 사건을 대구고등법원에 환송한다.
Unofficial English translation
The order of the court below is reversed, and the case is remanded to the Daegu High Court.
Form of the test
Elements stated Stated in the decision
소송구조의 요건으로는 소송비용을 지출할 자금능력이 부족할 것과 패소할 것이 명백하지 않을 것이 요구된다.
Unofficial English translation
The requirements for aid in litigation are that the party must lack the financial ability to incur litigation expenses and that it must not be obvious that the party will lose.
Factors
- 행정소송법에 의해 준용되는 민사소송법 제128조 제1항에서 정한 소송구조의 요건
- 패소할 것이 명백하지 않다는 것
- 소명의 정도
- 제1심에서 패소하였다는 사실만으로 항소심에서도 패소할 것이 명백하다고 추정되는지 여부(소극)
Unofficial English translation
• The requirements for aid in litigation prescribed in Article 128 (1) of the Civil Procedure Act applied mutatis mutandis pursuant to the Administrative Litigation Act
• That it is not obvious that the party will lose
• The degree of prima facie proof
• Whether the mere fact of having lost in the court of first instance gives rise to a presumption that it is obvious that the party will lose in the appellate instance as well (negative)
Relation to precedent
Follows earlier decisions Stated in the decision
대법원 2001. 6. 9.자 2001마1044 결정
Unofficial English translation
Supreme Court Decision 2001Ma1044 decided June 9, 2001
Decisions referred to
대법원 2001. 6. 9.자 2001마1044 결정(공2001상, 1513)
Burden of proof
The party asserting Read from the decision
소송비용을 지출할 자력이 부족하다는 점을 소명한 것으로 볼 수 있다
Unofficial English translation
may be regarded as having made a prima facie proof of the fact that the party lacks the financial ability to incur litigation expenses
Open question and revisit condition
Where there are only assertions without any specific materials making a prima facie showing, to what extent can the lack of financial means be recognized as sufficiently shown?
If the requirements for aid in litigation under Article 128 of the Civil Procedure Act or the provision of Article 8 (2) of the Administrative Litigation Act applying it mutatis mutandis is amended, this reading will be examined again.
Cross-family AI independent reading & axis check
6 of 8 axes matched GPT-6 Astra (OpenAI, codex CLI) · 2026-10-16
A comparison with an independent reading by another line of AI (GPT-6 Astra), which read only the original text without seeing the first reading, showed that 6 of the 8 axes agreed, while the readings diverged on axis 7 (Burden of proof) and axis 8 (Open question and revisit condition).
Axis 7 (Burden of proof): Primary “The party asserting” vs Independent “Not addressed”
If the requirements for aid in litigation and the degree of prima facie showing in the Holdings are read as a matter of the applicant's burden, it may be classified as the party asserting; if it is distinguished from an express allocation of the burden of proof, it may be classified as not addressed.
소송비용을 지출할 자력이 부족하다는 점을 소명한 것으로 볼 수 있다Axis 8 (Open question and revisit condition): Primary “Where there are only assertions without any specific materials making a prima facie showing, to what extent can the lack of financial means be recognized as sufficiently shown?” vs Independent “Whether the requirements for recognition of refugee status are satisfied depending on the allegations and Evidence that the applicants will submit in the appeal on the merits”
The first reading asks about the degree of prima facie showing of a lack of financial means, while the independent reading asks whether the requirements for recognition of refugee status are satisfied on the appeal on the merits.
제1심에서 패소하였다는 사실만으로 항소심에서도 패소할 것이 명백하다고 추정되는지 여부(소극)Raw responses and comparison record: Protocol · Blind readings (JSONL) · Axis comparison (JSONL) · SHA-256 (JSON)
Lower-court contrast & scope of application
Lower-court reading vs. Supreme Court holding
Lower-court context: After the claim for revocation of a decision not to recognize refugee status was dismissed at first instance, the applicants filed an application for aid in litigation in respect of the revenue stamp amount for the notice of appeal, and the court of first instance dismissed the application, holding that the prima facie showing materials submitted alone were not sufficient to recognize grounds for aid in litigation; the court below dismissed an appeal against a ruling from that decision.
Supreme Court standard: The Supreme Court found that the lack of means had been sufficiently shown, given the circumstances asserted: the applicants are aliens whose period of stay has expired, they support two young daughters, and their husband injured his leg and cannot work. It further held that, since the appeal is heard on the merits and whether refugee status is recognized may vary depending on which circumstances are asserted and proved, one cannot categorically conclude that a loss is apparent, and it found that the court below had misapprehended legal principles in relation to the requirements for aid in litigation.
Distinguishing conditions
- A case in which a loss can be found to be apparent on the materials produced in the proceedings up to that point
- An application for aid in litigation at a stage other than the appeal stage, such as an appeal to the Supreme Court, where the submission of new allegations and Evidence is restricted
- A case in which no allegation or circumstance concerning a lack of financial means appears at all, so that there is no prima facie showing of a lack of means as such
Record verification notes
Before asserting the same conclusion, check whether circumstances supporting a lack of means, such as the applicant's status of stay, dependents, and income situation, appear in the Records, and whether the issue on the merits is of such a nature that the outcome may change depending on new allegations and Evidence.
From the official text
Points at issue
행정소송법에 의해 준용되는 민사소송법 제128조 제1항에서 정한 소송구조의 요건 / 그중 ‘패소할 것이 명백하지 않다는 것’에 관한 소명의 정도 및 제1심에서 패소하였다는 사실만으로 항소심에서도 패소할 것이 명백하다고 추정되는지 여부(소극)
Unofficial English translation
The requirements for aid in litigation prescribed in Article 128 (1) of the Civil Procedure Act applied mutatis mutandis pursuant to the Administrative Litigation Act / The degree of prima facie proof required with respect to 'that it is not obvious that the party will lose,' among those requirements, and whether the mere fact of having lost in the court of first instance gives rise to a presumption that it is obvious that the party will lose in the appellate instance as well (negative)
Summary of the holding
The official text publishes no summary of the holding for this decision. The quotation and factors in this record are copied verbatim from the points at issue; the evidence for each axis is taken from the points at issue, the order and the reasons.
Order
원심결정을 파기하고, 사건을 대구고등법원에 환송한다.
Unofficial English translation
The order of the court below is reversed, and the case is remanded to the Daegu High Court.
Provisions referred to
행정소송법 제8조 제2항, 민사소송법 제128조 제1항
Read 2026-10-16 · Cross-read 2026-10-16. All quotes matched against the official text. The Chinese-character placeholders the court used for anonymised parties are given in their Korean readings, and parenthetical Chinese-character glosses are omitted.
Every entry is published only after all quotes have been matched character by character against the official text, and audited by an independent second reading from a different model family across all eight axes. Both agreed axes and text-grounded interpretive divergences are recorded openly. The ledger is a research record, not an assessment of the court or advice on any matter.
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