[2] Whether the parties can unilaterally designate the order of appropriation of performance to the expenses, interest, and principal differently from the order of statutory appropriation of performance (negative), and where the parties make an application for appropriation of performance to the court, whether the damages for delay are first appropriated as the principal in terms of the interest (affirmative)

[3] In a case where an obligor claims a payment of money after a court of first instance rendered a provisional execution, whether the appellate court should consider the payment in determining the legitimacy of the claim (negative)

[2] Article 479 of the Civil Act is stipulated in the order of appropriation for payment of expenses, interest, and principal, and Article 476 of the Civil Act does not apply mutatis mutandis to the application of appropriation for payment of expenses, interest, and principal. Thus, the parties cannot designate the order of appropriation unilaterally differently from the legal order. In the event of appropriation for payment in accordance with Article 479 of the Civil Act, the damages for delay shall be appropriated first from the principal in light of the interest rate.

If there is an explicit or implied agreement between the parties, it may be recognized differently from the order of statutory appropriation for payment, but the claimant is responsible for proving the agreement.

[3] Where a debtor pays money to avoid a compulsory execution based on the judgment of the court of first instance after the court of first instance rendered a provisional execution, it does not affect the repayment finally, and even if the debtor asserts that he/she paid the above money in the appellate court, the appellate court shall decide the propriety of the claim, instead of taking such grounds into consideration.

1. The liability for damages arising from a tort and damages for delay shall accrue at the same time with the establishment of the liability, barring any special circumstance (see, e.g., Supreme Court Decisions 94Da30065, Nov. 25, 1994; 2016Da41869, Oct. 4, 2018).

With respect to the appropriation of performance to the expenses, interest, and principal, Article 479 of the Civil Act is stipulated in the order of appropriation, and Article 476 of the Civil Act on the appropriation of payment to the designated performance does not apply mutatis mutandis. Therefore, the parties cannot designate the order of appropriation unilaterally differently from the legal order (see Supreme Court Decision 90Meu7262, Nov. 9, 190, etc.). In accordance with Article 479 of the Civil Act, the damages for delay, when the appropriation of performance is made in accordance with Article 479 of the Civil Act, shall be appropriated first,

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

Where a debtor pays money to avoid compulsory execution based on the judgment of the court of first instance after a provisional execution was made, the repayment does not take effect finally, and even if the debtor claims that he paid the above money in the appellate court, the appellate court should determine the propriety of the claim without considering such reasons (see, e.g., Supreme Court Decisions 93Da26175, 26182, Oct. 8, 1993; 95Da15827, Jun. 30, 1995).

2. After the judgment of the court of first instance was rendered, the lower court deducted KRW 100 million that the Defendant paid as part of the damages to the Plaintiff from the principal of the damages liability. For that reason, both the Plaintiff and the Defendant appealed and did not confirm the damages, and the Defendant did not appear to have paid the said money with the intention of first repaying the damages for delay recognized in the judgment

However, examining the reasoning of the lower judgment in light of the aforementioned legal principles and records, there is room to view that damages for delay were incurred for the Defendant’s damage liability from the date the instant traffic accident occurred, and KRW 100 million, which was paid as part of the damages for delay after the damages for delay occurred, was preferentially appropriated for damages for delay pursuant to Article 479 of the Civil Act. In addition, since KRW 100 million was paid after the first instance judgment, which was sentenced to provisional execution, the lower court needs to examine the legal nature of the said money

Nevertheless, the lower court erred by misapprehending the legal doctrine regarding the order of appropriation of KRW 100 million by failing to exhaust all necessary deliberations, and the assertion and burden of proof as to the agreement on appropriation of performance.

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

Justices Lee Dong-won (Presiding Justice)