[2] The validity of performance by declaration of provisional execution

[2] The effect of repayment due to provisional execution is not conclusive, but is merely derived from the condition that the declaration of provisional execution or the cancellation of the judgment on the merits be performed in the appellate court. Thus, even if the amount of provisional execution was paid by the judgment on the sentence of provisional execution in the first instance, the appellate court should determine the legitimacy of the pertinent claim without considering it as an appellate court.

1. As to the violation of the rules of evidence and the incomplete hearing

Recognizing the reasoning of the judgment of the court of first instance, the court below accepted the reasoning of the judgment that the buses in modern fishing (vehicle registration number omitted) registered in the school foundation of Co-Defendant 1 of the first instance trial (hereinafter referred to as the "Co-Defendant 1 of the first instance trial") entered the first instance court's joint defendant 1 corporation and operated for the purpose of attending the school and exercising the school of the students and the faculty members of the first instance court's joint defendant 1 corporation. The defendant, holding sports events under the supervision of the Korean Agricultural Cooperative Co-Defendant 1's general university's association established and operated as part of its business and operated as part of its business, he borrowed the vehicles belonging to the school from the main and secondary university transportation vehicle for the purpose of saving the expenses. The court below's decision that concluded a large bus management consignment contract with the Co-Defendant 1 of the first instance court's joint defendant 1 and concluded a large bus management consignment contract with the non-party 2 who is the director of the first instance court's joint defendant 1 of the first instance court's judgment.

2. As to the assertion of misapprehension of the legal principle as to automobile operation control and operating profit

Article 3 of the Guarantee of Automobile Accident Compensation Act provides that a person who is liable to compensate for an automobile accident "the person who operates an automobile for his own interest" refers to a person who can be deemed to be in the position of the responsible subject to the responsibility to control the operation of the automobile in question and to enjoy the benefit therefrom by social norms, and in the case of the lease of an automobile, unless there are special circumstances, a person who actually controls the operation of an automobile leased by the lessee and who is in the interest of the operation (see, e.g., Supreme Court Decisions 79Da906, Dec. 11, 1979; 92Da27782, Jun. 8, 1993).

Therefore, the judgment of the court below that the defendant who leased the above accident bus was in a position of an operator who controlled the operation of the above accident bus and affected its interests is just in accordance with the above legal principles, and there is no error of law in the misapprehension of legal principles as to the control of operation of a motor vehicle or the profits from operation as alleged in

3. As to the assertion of misapprehension of legal principles as to the loss of profit and the liability for non-joint and several liability

After the judgment of the court of first instance rendered on October 12, 1998, the plaintiffs received the full amount of KRW 43,200,00 from the fire marine insurance corporation of the first instance, which is a co-defendant of the first instance court, and agreed on Oct. 12, 1998, which is a co-defendant of the first instance court, the supplementary intervenor of the first instance court, and thus the claim for damages against the defendant has already been extinguished. Thus, the judgment of the court below which rendered after the above agreement is erroneous in affirming the plaintiffs' claim which has lost the benefit of lawsuit. The court below's ground of appeal that the plaintiffs committed an unlawful act of ordering the payment again of the first instance court which had already been extinguished by the fire marine insurance corporation of the quasi-joint and several liability. The ground of appeal to the effect that the repayment due to provisional execution did not become a legitimate ground of appeal as to the judgment of the court of first instance, and is not a final judgment, and it is merely a ground of appeal that the provisional execution was revoked by the court of first instance.

3. Therefore, the appeal is dismissed and all 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 Shin Sung-sung (Presiding Justice)