소송상 특별대리인의 보수 등의 소송비용 인정에 관한 검토

초록

February 3, 2016 Under the amended Civil Procedure Act, Article 62(5) newly stipulates that the remuneration, appointment costs, and litigation-related expenses for a special representative for a person with limited capacity are included in litigation costs. Article 62-2(1) applies this provision mutatis mutandis to a special representative for a person without legal capacity (effective February 4, 2017). This amendment will mark its 10th anniversary in the new year of 2026. In connection with this, I recently encountered a dismissal decision regarding an application seeking a ruling to recognize the remuneration of special representatives for a person with no capacity to act as litigation costs, following a victory in the main case. There were no practical precedents specifically applying the amended Civil Procedure Act provision regarding the inclusion of litigation costs such as remuneration of special representatives; this appears to be the first precedent-setting case. This prompted me to recognize the need to analyze the legal principles governing litigation costs for a special representative’ remuneration. In light of societal changes associated with entering a super-aged society, alongside interest in substantive law systems for legal representatives like adult guardianship, the significance of special representatives in litigation has also grown. Therefore, prompted by this precedent-setting case, we conducted a detailed examination of the special representative system (including introductions to the German and Japanese systems), and litigation costs, including the remuneration of special representatives, appointment costs, costs related to litigation acts, and the inclusion of special representative remuneration in litigation costs. Particularly, given that the Civil Procedure Act contains no explicit restrictions on the qualifications for special representatives, this paper seeks to find its significance in the argument that even when a non-attorney is appointed as a special representative, the court should consider the nature and complexity of the case and other circumstances to determine the remuneration and recognize it as litigation costs, which should be borne by the losing party.

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