Chapter 2. Appendix: The records read

Can a person without sufficient means to pay litigation costs apply for litigation aid?

In these practice materials, the written statements of the financial means of the applicant and of the family members living with the applicant are examined, along with which court holds the case record.

One interpretation holds that once insufficient means are shown, litigation aid can be granted unless it is clear that the applicant will lose the case.

Another interpretation holds that if the grounds for aid are not shown in a written application, the court holding the case record will find it hard to grant aid.

What must be examined first to decide whether the proviso applies?

The matter is looked at again if the litigation is taken over by a successor or an objection is filed against a decision on litigation aid.

Are costs deferred under litigation aid collected later rather than waived?

In these practice materials, the records showing what the aid decision covered and how the party's finances changed are examined together.

One interpretation holds that costs listed as waived in the aid decision are treated as no longer owed, so there is no later repayment.

Another interpretation holds that aid only postpones payment, so the costs are settled once finances change or a ruling on who bears them is made.

What decides from whom, and in what order, the deferred costs are finally collected?

The matter is looked at again if the party's finances change or a ruling on who bears the costs is newly confirmed.

When costs are insufficient or explanations are blocked, what assistance does the law provide?

In these practice materials, financial circumstances are reviewed together with the progression of the questions, explanations, and statements exchanged in court.

If cost is the center of the blockage, the procedure can be understood as leading in a direction of deferring payment or avoiding collateral.

If the blockage lies in spoken and written expression, there is room to examine the sequence of the court's requests for questions and clarification, prohibitions on statements, and orders to appoint counsel.

In these practice materials, has it been identified whether the cause of the blockage is a problem of cost, a problem of procedural explanation, or a problem of the ability to make statements?

When additional material on financial circumstances or the progression of explanations and statements in court is added to these practice materials, we will examine it again.

If litigation costs are not paid in advance, may the court decline to take the step concerned?

In these practice materials, who applied for which procedural step and whether the court ordered the costs to be paid in advance are reviewed.

One interpretation holds that the person who must pay in advance is fixed, and if that person does not pay, the court may decline to take the step.

Another interpretation holds that even without advance payment, where the proceedings would be seriously hampered the costs may first be paid from the national treasury and must be recovered later.

How does the duty to pay in advance differ from the final liability for costs?

The matter is looked at again if who paid in advance, or from whom the court decided to recover the costs it paid, changes.

Until when can security for costs be sought from a foreign plaintiff with no base in the country?

In these practice materials, the complaint, the briefs and the rest of the case record, the papers on any domestic address, office or place of business, and the records showing when the ground for security became known and how argument on the merits went are examined together.

One interpretation holds that if the ground for security was not yet known, an application for security may still be made even after argument on the merits.

Another interpretation holds that once a party knew the ground and still argued on the merits or made statements at a preparatory hearing, no application may be made afterwards.

Which must be fixed first, the time the ground for security became known or the time of argument on the merits?

The matter is looked at again if the order fixing the amount and period of security, whether security was given within the period, or whether it was given before judgment turns out differently.

In what form is security for costs given, and how is it recovered after the lawsuit?

In these practice materials, the order to provide security, the deposit certificate or guarantee document, and the course of the lawsuit and whether it has concluded are examined together.

One interpretation holds that security given by a cash deposit may be recovered by proving that the ground for security has ceased and obtaining a cancellation order.

Another interpretation holds that some forms of security need the court's approval or permission, and that on recovery there is a separate route of proving the holder's consent instead of proving that the ground has ceased.

When seeking cancellation of the security, what must be proved or completed on each route?

The matter is looked at again if, after the lawsuit concludes, whether the holder exercises the right or whether the ground for security has ceased turns out differently.

Of the money spent on a lawsuit, how much counts as litigation costs?

In these practice materials, the spending records that include an accounting expert's fee and the record showing the amount the court set are reviewed together.

One interpretation holds that the limit of what was necessary comes first, so only spending tied to the proceedings counts as litigation costs.

Another interpretation holds that for items with a fixed amount, that amount is the measure whatever was actually spent.

How should the general principle and the item by item methods of calculation fit together to settle the scope?

The matter is looked at again if the amount the court set or the amount the Supreme Court Rules set changes.

How much of the fees paid to a lawyer is recognized as litigation costs?

In these practice materials, material showing the relationship of representation in the suit and the fees paid or to be paid is checked.

One interpretation holds that within the range the Supreme Court Rules set, the fee the party actually paid or will pay becomes litigation costs as it stands.

Another interpretation holds that apart from the agreed fee, only the part within the range the Supreme Court Rules set is recognized as litigation costs.

What standard separates the agreed fee from the amount recognized as litigation costs?

The matter is looked at again when the judgment on cost liability becomes final or enforceable and the amount of costs is being fixed.

When can even the winning party be made to bear part of the litigation costs?

In these practice materials, the extent to which the claims were granted and the record of the acts in the litigation that gave rise to each cost are reviewed together.

One interpretation holds that even for an act of the winning party, if it was not needed to extend or protect a right, the winning party can be made to bear its cost.

Another interpretation holds that because costs follow the outcome on the merits, the costs paid by the winning party are as a rule borne by the other side.

How is it decided whether each cost arose from an act needed to extend or protect a right?

The matter is looked at again if costs caused by delay come to light or the extent to which the claims were granted changes.

In a case with several defendants and an intervener, how are the litigation costs divided?

In these practice materials, the relationship among the defendants, the form of the intervention, and the cost records for each act are reviewed.

One interpretation holds that equal shares are the strict rule and that a different division requires clear circumstances.

Another interpretation holds that a different division should be readily available and costs should follow each party's actual involvement and acts.

What circumstances justify considering a division other than equal shares?

The matter is looked at again if the form of the intervention changes, the intervention is withdrawn, or new cost records come to light.

When a lawsuit ends by settlement or withdrawal, who bears the costs?

In these practice materials, whether the settlement terms deal with costs and the records showing how the lawsuit ended without a judgment are reviewed.

One interpretation holds that if the settlement says nothing special about costs, each party bears its own, so no separate decision on costs is needed.

Another interpretation holds that when a lawsuit ends without a judgment, the court must decide on application who bears the costs and how much, so they are not settled automatically.

To settle the remaining cost issues, must it first be decided whether the case ended by settlement or in some other way without a judgment?

The matter is looked at again if the wording of the settlement terms is newly confirmed or whether a written application to fix the costs was filed changes.

If the appellate court changes the decision on the merits, how are the costs of the lower court settled?

In these practice materials, the judgments concluding each instance, the papers showing whether the merits were changed, and the documents on costs are checked.

One interpretation holds that the costs of each instance are determined by the judgment that concludes that instance, so that the prior costs ruling remains in force as long as the higher court does not change the merits.

Another interpretation holds that in the judgment that concludes the case after the merits have been changed or the case has been returned, all costs are determined together, so that the prior costs ruling is absorbed into it.

If the concluding judgment fixes all costs after the merits have changed, what effect does the earlier costs ruling of the prior instance keep?

The matter is looked at again if the higher court changes the merits, or the operative part of the concluding judgment after a remand or transfer turns out differently.

When only liability for litigation costs has been decided, how is the amount fixed?

In these practice materials, the operative part and reasons of the judgment on cost liability are checked, along with whether a statement of costs and supporting papers were filed and what they say. Whether a copy was given to the opposing party and a chance to state its position was offered is reviewed as well.

One interpretation holds that if the opposing party does not file its papers within the set period, the matter can be closed quickly by a decision on the applicant's costs alone.

Another interpretation holds that the amount can be fixed only after the opposing party has been fully given the chance to state its position and file papers.

If the opposing party does not file its papers within the period, how far can the decision reach?

The matter is looked at again if the opposing party later applies separately for the amount to be fixed, files new supporting papers, or the time when the cost judgment takes effect changes.

In insolvency proceedings, what standing does a claim for costs in a suit taken over by the administrator or trustee have?

In these practice materials, whether the suspended suit was taken over and the operative part of the ruling on who bears the costs are checked.

One interpretation holds that in a suit taken over by the administrator or the bankruptcy trustee, the other side's claim for costs becomes in full a common benefit claim or an estate claim.

Another interpretation holds that costs arising before and after the takeover must be given different standing, with the takeover as the dividing point.

Can all the costs be given the same standing, whatever the time of the takeover?

The matter is looked at again if who took over the suit or whether the ruling on costs is final changes.