[부양료][공1990.7.15.(876),1369]
Effect of performance based on a declaration of provisional execution
If the respondent paid the amount of provisional execution by a declaration of provisional execution attached to the judgment of the court of first instance regarding the claim for the support allowance against the respondent of the claimant, the above claim for the support allowance shall not be extinguished within the scope of the provisional execution. Therefore, it shall not be considered by the appellate court.
Article 199 of the Civil Procedure Act, Article 460 of the Civil Act
[Plaintiff-Appellant] Plaintiff 1 and 1102 decided Dec. 14, 1982 (Gong1983, 266)
Claimant (respond-Appellee)
The respondent (Appellant of the second instance) (Attorney Park Sang-hoon, Counsel for defendant-appellant)
Seoul High Court Decision 89Reu14 (This Court Decision), 848 (Refence) decided November 24, 1989
The appeal is dismissed.
The costs of appeal shall be borne by the respondent.
We examine the grounds of appeal.
With respect to No. 1:
According to the facts established by the court below, from August 27, 1987, the claimant (the claimant) has the ability to support because he has no job and has no ability to support the defendant (the respondent) because he has the ability to obtain income while opening the hospital, and therefore, the respondent has the obligation to pay the support fee of 180,000 won per month at the reading room of the only party located in Gangseo-gu Seoul Metropolitan City, Gangseo-gu, Seoul. However, in light of the overall circumstances cited by the court below, the defendant is reasonable in the judgment of the court below, since he has a duty to pay the support fee of 180,000 won per month.
Therefore, there is no reason to criticize the judgment of the court below on the contrary or on the basis of facts not recognized by the court below.
With respect to the second ground:
Upon examining the records, the respondent's attorney stated that he paid the money of subparagraph 7-2, 3, 4 (money without using a passbook, and money of deposit) at the court of first instance by a declaration of provisional execution attached to the court of first instance (the court below's 8 pleading protocol). Thus, the claim of the support fee of this case against the respondent of the claimant is not extinguished to the extent of its scope. Therefore, it is not reasonable for the court below to take this into account (see Supreme Court Decision 71Da728 delivered on May 24, 197; 80Da1101,102 delivered on December 14, 1982). The respondent's attorney may not send 00Da4000 delivered on August 25, 1989 to the defendant, 100Da1080 delivered on May 14, 197, 1900, 100Da10800 delivered on May 10, 1970.
Therefore, the court below did not examine whether or not the claimant received 300,000 won per month after the sentence of the court of first instance was rendered, and it cannot be said that there is a contradiction in the reason that the court below did not deduct the amount from the support fees of this case claimed by the claimant for the money that the respondent deposited 500,000 won on November 11, 198, 198, and 700,000 won on December 7, 198.
Therefore, an appeal is filed. The costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Kim Young-ju (Presiding Justice)