The defendant shall bear the costs of appeal.

On August 25, 2011, Supreme Court Decision 2011Da25145 Decided August 25, 201 and Supreme Court Decision 2003Da5294 Decided February 27, 2004 on the scope of a provisional execution creditor's restitution and liability for damages where the main judgment is changed in the appellate court, the court below has the right to seek for the payment of provisional payment and damages to the defendant from the date of the provisional execution, provided that the plaintiff paid the provisional payment to the defendant in accordance with the judgment of first instance which declared provisional execution, but inasmuch as the main judgment was changed to the meaning of partial cancellation in the appellate court, the court below has the right to seek payment of provisional payment and damages from the date of the payment.

Based on its determination, the defendant has a duty to return the difference that the plaintiff has not yet returned to the defendant as illegal gains.

The decision was determined.

B. Supreme Court Decision 2009Da18557 Decided November 11, 2010, which the Defendant cited, rejected the Defendant’s assertion that the Defendant is not liable for damages under Article 215(2) of the Civil Procedure Act, based on the following: (a) the Defendant, who is a provisional execution obligee, seeking compensation for damages arising from deposit under the name of the court when applying for the suspension of compulsory execution against the judgment rendered by the provisional execution; and (b) the instant case and factual relations cannot be applied differently; and (c) even according to the above Supreme Court decision cited by the Defendant, the Plaintiff as a provisional execution obligor, in light of all the circumstances, appears to be acceptable in light of social norms, because the provisional execution obligee anticipated the execution by the obligee and voluntarily paid the provisional payment.

The judgment below

Examining the reasoning of the judgment in light of the relevant legal principles and records, the judgment below is erroneous in the misapprehension of the legal principles as to the nature and scope of damages and the timing of delayed interest pursuant to Article 215(2) of the Civil Procedure Act, as alleged in the grounds of appeal.