[손해배상(기)][미간행]
In a case where the execution creditor of a preservative measure has become final and conclusive against the lawsuit on the merits, whether it is presumed that he/she had intention or negligence on the part of the debtor with respect to the damage incurred by the execution of preservative measure (affirmative), and, in such a case, whether the execution creditor is liable for damages incurred by continuing to maintain the execution, even if he/she knew or could have known the fact that the execution was completed after the execution was completed (affirmative)
Article 750 of the Civil Act, Articles 276 and 300 of the Civil Execution Act
[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Han, Attorneys Park Jae-soo et al., Counsel for plaintiff-appellant)
Plaintiff Co., Ltd. (Attorney Lee Il-soo, Counsel for the plaintiff-appellant)
△△△ Dock Co., Ltd.
Gwangju High Court Decision 2008Na3843 decided June 5, 2009
The appeal is dismissed. The costs of appeal are assessed against the defendant.
We examine the grounds of appeal.
Although a preservative measure, such as a provisional disposition, is executed by the court's trial, the issue of whether a substantive claim exists shall be entrusted to the principal lawsuit and shall be borne by the creditor. Thus, if an execution creditor after such execution is finalized to lose the lawsuit on the merits, it shall be presumed that the execution creditor was intentional or negligent with respect to the damage incurred by the debtor due to the execution of the preservative measure, and therefore, he/she shall be liable to compensate for the damage caused by such unfair execution (see Supreme Court Decision 2000Da46184, Sept. 24, 2002). In such cases, even if the creditor knew or could have known after the execution of the preservative measure was completed, even if he/she knew or could have known that the damage was incurred to the debtor due to the maintenance of the execution, he/she shall be liable to compensate for the damage if the damage was incurred by maintaining the preservative measure without taking such measures as the release of execution within
According to the reasoning of the judgment below, in light of the facts and circumstances stated in its reasoning, the court below determined that the defendant, the preservation execution creditor, received the first content-certified mail from the plaintiff, the debtor, who is the preservation execution execution debtor, at the latest, the difficulty of the plaintiff to pay the down payment according to the sales contract of this case, and thereby, knew or could have known the fact that the damage to the plaintiff was caused to confiscate the down payment to the plaintiff. However, the court below held that the defendant is liable for compensation because he continued to maintain the execution of the provisional disposition of this case and caused damage equivalent to the down payment to the plaintiff.
Examining the aforementioned legal principles and the evidence admitted by the court below in light of the records, the judgment of the court below is just, and there is no error in the misapprehension of legal principles as to
Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.
Justices Jeon Soo-ahn (Presiding Justice)