A 'Silent Collaborator' Supplementing Court Decisions
Appraisal Results in Construction Cases Also Overturned
#1. In April, law firm Shin & Kim strategically utilized the expert commissioner system in a case where a construction company filed a claim for additional construction costs worth billions of won against a developer, leading to the impeachment of the appraisal results in the appellate court. The dispute arose when plaintiff Company A entered into a contract by estimating construction costs based on defendant Company B's basic design drawings, but later claimed additional construction costs due to differences with the detailed design drawings provided at the start of construction. Company A demanded additional costs citing an increase in rebar quantities, and the appraiser determined that this was due to increased construction costs from changes in the basic design drawings. The first-instance court largely accepted this argument.
However, Shin & Kim pointed out errors in the appraisal method, emphasizing that the contractual standard was the detailed design drawings. The firm obtained an opinion from the expert commissioner stating, "The appraiser calculated quantities based on the basic design drawings, but this is merely a 'preliminary estimate,' which is not accurate and cannot be trusted." The appellate court ruled, "Quantities based on architectural review documents cannot be accurate, and only a preliminary estimate is possible. If the construction company determined the construction costs using its own estimate, it should have predicted the rebar quantities itself, and merely specifying the details in the detailed design cannot be regarded as additional construction." As a result, all of Company A's claims for additional construction costs were dismissed.
#2. On April 15, the Korea Legal Aid Corporation secured a ruling for payment of approximately 75 million won by utilizing the expert commissioner system in a damages lawsuit filed by Mr. C, who operates a brewery, against Korea Electric Power Corporation (KEPCO). Representing Mr. C, the corporation argued, "A fire broke out and the building was completely destroyed due to friction between power lines installed and managed by KEPCO." KEPCO countered, claiming, "This was an unavoidable natural disaster caused by a typhoon."
The corporation appointed an electrical and fire expert as an expert commissioner, who proved that the power lines were installed excessively close to the building, resulting in contact during strong winds and causing the fire. The Gyeongju Branch of the Daegu District Court stated, "When power lines are installed close to buildings, a certain separation distance must be maintained. KEPCO's negligence in this regard was one of the causes of the fire," partially acknowledging KEPCO's fault and setting the liability ratio at 50%.
The expert commissioner system is establishing itself as a 'silent collaborator' that supplements the court's decision-making. Recently, appellate court rulings have overturned appraisal results based on expert commissioners' opinions, and the system is being recognized for making substantial contributions in certain fields.
According to a research report submitted by Korea University’s Industry-Academic Cooperation Foundation to the National Court Administration in 2024, the number of cases in which expert commissioners participated increased each year, from 1,181 cases in 2020 to 1,276 cases in 2023. Since 2016, the system of 'full-time expert commissioners' working in courts has been introduced, providing advanced consultation in the construction and medical fields.
The average monthly number of cases handled by full-time expert commissioners affiliated with high courts nationwide in the construction field increased from 2.3 cases in 2017 to 13.5 cases in 2023, recording a monthly average of 11.9 cases over the past four years.
Although the explanations and opinions of expert commissioners do not have evidentiary power, they provide substantial assistance to the court in understanding and judging technical issues. Supreme Court precedents have established that the results of an appraiser’s appraisal must be respected unless there is a clear error, such as the appraisal method contradicting common sense or lacking rationality (2006Da67602, 67619, etc.), and that the explanations or opinions of expert commissioners do not constitute a method of proof (2013Da18332).
Kang Jooheon (56, Judicial Research and Training Institute Class 31), an attorney at Barun Law LLC who previously worked in the construction division of the Seoul High Court, said, "Both the courts and litigants are now utilizing the expert commissioner system more strategically than before. Although the opinions of expert commissioners are not direct evidence in trials, they are highly useful in complex cases for determining appraisal matters or properly verifying appraisal results with the help of experts." Kang also noted, "In small claims cases, appraisal costs can account for a larger proportion of the total, so utilizing the expert commissioner system allows for the possibility of resolving cases at the adjustment or negotiation stage by referring to experts’ opinions in the relevant field."
Bae Jiho (45, Judicial Research and Training Institute Class 40), an attorney at Hanpyeong Law LLC and former member of the construction division at the Seoul Central District Court, said, "The system significantly enhances understanding of cases, as the court can directly question experts about matters related to the case. For example, even if 10 billion won is recognized in a delay damages or defect repair lawsuit based on appraisal results, the court ultimately adjusts the amount. In the process of determining actual liability for damages, the court can refer to the expert commissioner’s opinion to secure objective grounds for its decision." Bae added, "In construction lawsuits, unlike general lawsuits, the role of the appraiser tends to be absolute, so the expert commissioner system is highly effective. Although this system does not require the consent of both parties as in mediation, it is sometimes operated passively, so measures should be considered to increase its utilization."
An attorney at a major law firm commented, "Since requests for reappraisal of appraisal results are often dismissed, we are strategically utilizing the expert commissioner system as a response measure."
Seo Hayeon, The Law Times reporter
※This article is based on content supplied by Law Times.
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