Law Firm LLC et al.

Attorney Seo-soo et al., Counsel for the defendant-appellant

Attorney Kim Jong-tae, Counsel for the plaintiff-appellant

1. The liability for damages arising from a tort shall, unless there are special circumstances, occur both at the same time and at the same time (see, e.g., Supreme Court Decisions 94Da30065, Nov. 25, 1994; 2016Da41869, Oct. 4, 2018).

The order of appropriation under Article 479 of the Civil Act is stipulated for expenses, interest, and principal and Article 476 of the Civil Act is not applicable mutatis mutandis to the appropriation of performance. Thus, the parties cannot designate the order of appropriation unilaterally differently from the legal order (see Supreme Court Decision 90Meu7262 delivered on November 9, 190, etc.). In the event of appropriation of performance under Article 479 of the Civil Act, damages for delay shall be appropriated first from the principal on the basis of the interest, etc.

If there is an explicit or implied agreement between the parties, it may be acknowledged differently from the order of statutory appropriation for payment, but the party who asserts such agreement is liable to prove it (see Supreme Court Decision 93Da49338 delivered on February 22, 1994, etc.).

Where a debtor pays money to avoid compulsory execution according to a judgment of the court of first instance after the provisional execution was made, the repayment does not have any effect on the part of the debtor, so even if the debtor asserts that he paid the above money in the appellate court, the appellate court should determine the propriety of the claim without considering such a reason (see, e.g., Supreme Court Decisions 193Da26175, Oct. 8, 1993; 95Da15827, Jun. 30, 1995).

2. The lower court deducted KRW 100,000,000, which the Defendant paid as part of the damages to the Plaintiff after the sentence of the first instance judgment, from the principal of the damages liability. For that reason, both the Plaintiff and the Defendant appealed, and the damages for delay recognized by the Defendant in the first instance judgment,

I suggested that the above money did not appear to have been paid by the intention.

However, examining the reasoning of the lower judgment in light of the aforementioned legal principles and records, damages for delay shall accrue for the Defendant’s damage liability from the date the instant traffic accident occurred, and damages for delay shall be 100 million won paid as part of the damages after the damages for delay occurred.

There is room to view that damages for delay have been preferentially appropriated. Also, since 100 million won has been paid after the sentence of the first instance court to which the provisional execution was attached, the lower court needs to consider the legal nature of the money in order to examine the circumstances in which the Defendant paid KRW 100 million.

Nevertheless, the lower court erred by misapprehending the legal doctrine regarding the order of appropriation of 100 million won to the principal of the damage liability, the assertion of the agreement on appropriation of performance, the burden of proof, etc. by failing to exhaust all necessary deliberations.

3. The Plaintiff’s appeal is with merit, and this part of the judgment below against the Plaintiff is reversed, and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jo Hee-de

Justices Kim Jae-hyung

Justices Min You-sook