[부당이득금반환][집15(1)민,241]
Revocation judgment of a declaration of provisional execution and burden of expenses for compulsory execution
If the plaintiff was repaid as compulsory execution by the judgment of the claimant with the provisional execution sentence, but the same judgment was revoked by the appellate court, and the judgment dismissing the claim of the court below became final and conclusive, the costs of execution consumed by the plaintiff to receive illegal compulsory execution shall not be borne by the defendant but be borne by the plaintiff himself/herself. Therefore, it is erroneous in the court below to deduct the above costs of execution from the amount to be refunded to the defendant.
Article 201 of the Civil Procedure Act
Korea
Defendant
Seoul High Court Decision 66Na929 delivered on December 16, 1966, Seoul High Court Decision 66Na929 delivered on December 16, 1966
The part against the plaintiff in the original judgment shall be reversed.
The case is remanded to Seoul High Court.
The defendant's appeal is dismissed.
The costs of appeal arising from the defendant's appeal shall be borne by the defendant.
The Plaintiff’s attorney’s ground of appeal is examined.
According to the reasoning of the judgment below, the court below confirmed that the defendant spent 3,595,778 won and 2,052,684 won from the claim for compensation for requisition against the plaintiff, which were 3,59,778 won and 2,052,684 won from January 26, 1962 to the full payment, and paid 3,952,806 won by compulsory execution from July 28, 1964 to August 3, 1964. The above judgment was revoked at the Seoul High Court 64Na867 appellate court and became final and conclusive after the defendant dismissed the defendant's claim, and confirmed that the defendant spent 5,00 won from the compulsory execution cost to the extent of 3,952,806 won after deducting the above 5,00 won from the above expenses paid by the defendant, within the scope of 3,952,87,896 won.
However, according to the facts established by the court below, the defendant's compulsory execution against the plaintiff is illegal, and it is not the nature of the plaintiff's execution cost, but the defendant's personal body bears the burden of the defendant's personal body. Therefore, the execution cost spent by the defendant for repayment of illegal compulsory execution cannot be said to be the defendant's profit, so it is illegal that the defendant should not deduct 5,00 won consumed as the execution cost of compulsory execution. The arguments are reasonable.
Therefore, the part of the original judgment against the defendant shall be reversed, and the case shall be remanded to the Seoul High Court.
The defendant did not state the grounds of appeal in the petition of appeal, and did not submit the grounds of appeal within the prescribed period under Article 397 and Article 397 of the Civil Procedure Act, so the defendant's appeal is dismissed and the costs of appeal arising from the defendant's appeal
Therefore, this decision is delivered with the assent of all participating Justices.
Judge Do-dong (Presiding Judge) of the Supreme Court Do-dong (Presiding Judge)