Open Decision Ledger · Family & inheritance law
Legal aid in family cases: showing lack of funds and the risk of losing
Supreme Court, May 27, 2021, 2021Seu576 (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 Article 128(1) of the Civil Procedure Act as applied by Article 12 of the Family Litigation Act, how must an applicant for legal aid show a lack of funds, and how is it judged that the applicant is not clearly bound to lose?
Holding
The applicant may show a lack of funds by any means, and the court decides whether that showing is made on its free evaluation; the statement of the financial capacity of the applicant and the family living with them, required by Article 24(2) of the Civil Procedure Rules, is one example of a method rather than the only one. Being not clearly bound to lose is a negative requirement, so the applicant need not positively state and prove a chance of winning, and the requirement is met unless the court can find, on the material produced in the proceedings so far, that loss is clear. On this record, the re-applicant's nationality, age, lack of work, family and housing, the poverty certificate she filed and the fact that part of her legal aid application was granted allowed the view that a lack of funds was shown, and no clear material showed that she was bound to lose on appeal.
Points at issue, verbatim
민사소송법 제128조 제1항에서 정한 소송구조의 요건 및 그중 ‘패소할 것이 명백하지 않을 것’이 구비되었는지 판단하는 방법
Unofficial English translation
The requirements for aid in litigation expenses set forth in Article 128 (1) of the Civil Procedure Act, and the method of determining whether one of them, namely that 'it is not obvious that the party will lose the action,' is satisfied
Disposition
Reversed and remanded Stated in the decision
원심결정을 파기하고, 사건을 대구가정법원에 환송한다.
Unofficial English translation
The order of the court below is reversed, and the case is remanded to the Daegu Family Court.
Form of the test
Elements stated Stated in the decision
소송구조의 요건으로는 소송비용을 지출할 자금능력이 부족할 것 외에도 패소할 것이 명백하지 않을 것이 요구된다.
Unofficial English translation
As a requirement for aid in litigation expenses, it is required, in addition to the party lacking sufficient financial ability to expend the litigation costs, that it is not obvious that the party will lose the action.
Factors
- 가사소송법 제12조에 따라 준용되는 민사소송법 제128조 제1항에서 정한 소송구조 사유의 소명 방법
- 민사소송법 제128조 제1항에서 정한 소송구조의 요건 및 그중 ‘패소할 것이 명백하지 않을 것’이 구비되었는지 판단하는 방법
Unofficial English translation
• The method of substantiating the grounds for aid in litigation expenses set forth in Article 128 (1) of the Civil Procedure Act, as applied mutatis mutandis under Article 12 of the Family Litigation Act
• The requirements for aid in litigation expenses set forth in Article 128 (1) of the Civil Procedure Act, and the method of determining whether one of them, namely that 'it is not obvious that the party will lose the action,' is satisfied
Relation to precedent
Follows earlier decisions Stated in the decision
대법원 2003. 5. 23.자 2003마89 결정(공2003하, 1677)
Unofficial English translation
Supreme Court Decision 2003Ma89 decided May 23, 2003 (Gong 2003 Ha, 1677)
Decisions referred to
[1] 대법원 2003. 5. 23.자 2003마89 결정(공2003하, 1677) / [2] 대법원 2001. 6. 9.자 2001마1044 결정(공2001하, 1513), 대법원 2018. 6. 29.자 2018무669 결정
Burden of proof
The party asserting Stated in the decision
신청인은 구조의 사유를 소명하여야 하며(민사소송법 제128조 제2항)
Unofficial English translation
The applicant must substantiate the grounds for the aid (Article 128 (2) of the Civil Procedure Act)
Open question and revisit condition
What must an alternative method of showing a lack of funds contain before the court may accept it under Article 128(2) of the Civil Procedure Act?
An amendment to Article 128 of the Civil Procedure Act or to Article 24 of the Civil Procedure Rules on showing financial capacity, or a later Supreme Court decision on what an alternative showing must contain, would require this entry to be read again.
Cross-family AI independent reading & axis check
7 of 8 axes matched GPT-6 Astra (OpenAI, codex CLI) · 2026-10-25
A reader from another model family (GPT-6 Astra), given the official text but not the primary reading, agreed on 7 of the 8 axes; the readings differed on axis 8 (open question and revisit condition).
Axis 8 (Open question and revisit condition): Primary “What must an alternative method of showing a lack of funds contain before the court may accept it under Article 128(2) of the Civil Procedure Act?” vs Independent “What amount and scope of attorney-fee assistance should be granted to the applicant on remand?”
The primary reading asks what an alternative method of showing lack of funds must contain under Article 128(2). The independent reading asks what amount and scope of attorney-fee assistance to grant on remand, which is a different unresolved point.
민사소송법 제128조 제1항에서 정한 소송구조의 요건 및 그중 ‘패소할 것이 명백하지 않을 것’이 구비되었는지 판단하는 방법Raw 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: The Daegu Family Court, in its ruling of 26 February 2021 (2021ZuGi34), dismissed the re-applicant's application for legal aid for the lawyer's fees on her appeal against the adjudication of 1 December 2020 (2018NeuDan2763, 2019NeuDan10053), holding that the grounds for legal aid could not be established. She had appealed the part of that adjudication under which she was awarded less past and future child support than she had claimed.
Supreme Court standard: The Supreme Court held that the court below had misapprehended the elements of legal aid and so committed an illegality affecting its decision. It found that the financial capacity statement and the poverty certificate raised no doubt, that the re-applicant's nationality, age, lack of work, family and housing and the grant of part of the application allowed the view that a lack of funds was shown, and that no clear material showed she was bound to lose on appeal, given that the other side had appealed the part she had won and a response to that appeal was needed. It reversed the ruling and remanded the case to the Daegu Family Court for rehearing, on the unanimous opinion of the participating Justices.
Distinguishing conditions
- A case in which the material produced in the proceedings so far lets the court find that the applicant is clearly bound to lose.
- A case in which the applicant neither submits the documents required by Article 24(2) of the Civil Procedure Rules nor shows a lack of funds by any other means.
- A legal aid application made otherwise than in writing, since Article 24(1) of the Civil Procedure Rules requires a written application.
Record verification notes
Set the file's financial records against Article 24 of the Civil Procedure Rules: the application must be in writing, and the statement of the applicant's and cohabiting family's financial capacity is one way, not the only way, to show a lack of funds, so gather whatever else can do that job. Then search the record for anything that makes an appellate loss clear, since only that can defeat the negative requirement. Where a family adjudication has been partly won and partly lost, and the other side has appealed the part won, check whether a response to that appeal is needed as well.
From the official text
Points at issue
[1] 가사소송법 제12조에 따라 준용되는 민사소송법 제128조 제1항에서 정한 소송구조 사유의 소명 방법 [2] 민사소송법 제128조 제1항에서 정한 소송구조의 요건 및 그중 ‘패소할 것이 명백하지 않을 것’이 구비되었는지 판단하는 방법
Unofficial English translation
[1] The method of substantiating the grounds for aid in litigation expenses set forth in Article 128 (1) of the Civil Procedure Act, as applied mutatis mutandis under Article 12 of the Family Litigation Act [2] The requirements for aid in litigation expenses set forth in Article 128 (1) of the Civil Procedure Act, and the method of determining whether one of them, namely that 'it is not obvious that the party will lose the action,' is satisfied
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 대구가정법원에 환송한다.
Unofficial English translation
The order of the court below is reversed, and the case is remanded to the Daegu Family Court.
Provisions referred to
[1] 가사소송법 제12조, 민사소송법 제128조 제1항, 제2항, 민사소송규칙 제24조 [2] 민사소송법 제128조 제1항
Read 2026-10-25 · Cross-read 2026-10-25. 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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