B. Whether the validity of a declaration of provisional execution partially invalidated where the appellate court judgment, which means a partial revocation of the judgment of the first instance court of the provisional execution sentence, has been reversed by the court of final appeal (affirmative)

B. If the appellate court judgment, which refers to a partial revocation of the judgment of the first instance court of the provisional execution sentence, reverses the final appeal judgment, the effect of the invalidated provisional execution sentence shall also be deemed reinstated.

On the first ground for appeal

This case is an objection suit seeking the denial of compulsory execution under the name of debt holder B, which was pronounced on February 26, 1986 in the lawsuit claiming the amount of settlement of accounts filed by the Defendant against the Plaintiff (hereinafter related lawsuit), and the reasoning of the judgment below and the related lawsuit recognized by the record are as follows.

In other words, the defendant disposed of real estate owned by the defendant to a third party with the defendant's consent, and claimed that the remainder of the real estate price appropriated for the defendant's repayment should be returned to the defendant. On February 26, 1986, "the defendant (the same shall apply to all of the plaintiff in this case and hereinafter)" is paid 25,567,606 won to the plaintiff (the plaintiff in this case and hereinafter the same shall apply) at the rate of 15% per annum from July 4, 1985 to 198. The above paragraph (1) is dismissed. The plaintiff's remaining claim is remanded to the court below for 90% per annum 29% per annum (the above judgment is subject to the lawsuit of this case. The remaining part of the plaintiff's appeal is remanded to the court below for 19.29% per annum 298. The plaintiff's remaining part of the appeal is remanded to the defendant's 19.25% per annum298.

After recognizing the progress of the above related litigation, the judgment of the court of first instance, which recognized the plaintiff's filing of the objection of this case against the judgment of the court of first instance in the above related lawsuit, was made before and after the remand in the above related lawsuit, and the judgment of first instance in the related lawsuit, which the plaintiff sought the exclusion of enforcement power by the lawsuit of this case, was entirely changed by the judgment of the court of first instance, and each of the above changes became final and conclusive, and the judgment of first instance in the above judgment became final and conclusive, which determined that the above judgment of first instance was null and void by the judgment of the court of first instance, and thus dismissed it as unlawful.

However, the above changed judgment in the appellate court is identical to a judgment revoking an appeal by citing a part of the judgment of the court of first instance with respect to the part where the appeal is well-grounded, and the part where the appeal is not well-grounded, but merely driving away a request for convenience in order to avoid complicated contents of the order and to easily understand the contents of the order (see Supreme Court Decision 80Da2566, Feb. 22, 1983). Thus, the effect of the judgment of the court of first instance by the above changed judgment is limited to the part where the appeal is well-founded, as in the case of a judgment revoking a part of the judgment of partial revocation. In the case where a provisional execution declaration is issued by the judgment of the court of first instance, even if the scope of the appeal is reduced by the judgment of the appellate court which means partial revocation, the provisional execution declaration becomes null and void only in the difference, and its remaining part remains null and void, and it is still null and void (see Supreme Court Decision 316Ma127, Feb. 3, 1968).

If the judgment of the court of first instance is deemed to be null and void by a modified judgment of the appellate court without regard as such, it will not only go against the provisions of Article 385 of the Civil Procedure Act, but also cause confusion by cancelling compulsory execution based on the judgment of the court of first instance, which is based on the above provisional execution sentence, because there is no objection by the parties or the appeal is modified to the part without merit.

Therefore, the judgment of the court of first instance becomes null and void by a modified judgment of the appellate court. The judgment of the court below is erroneous in the misunderstanding of legal principles as to the validity of the judgment of the appellate court as to the subject of a lawsuit of objection, which affected the conclusion of the judgment.

Therefore, the judgment of the court below 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 Choi Jae-ho (Presiding Justice)