[공사대금][공2011하,1928]
[1] In a case where a provisional execution was executed by a declaration of provisional execution but the part or whole of the judgment on the merits becomes null and void, whether the receipt already made by the declaration of provisional execution is subject to a return of unjust enrichment (affirmative), and the nature of the system for filing a request for return of the said provisional payment (=a preliminary counterclaim subject to a cancellation or alteration of the
[2] In a case where the first instance court filed a lawsuit claiming a payment of money against the debtor and received a favorable judgment in favor of the declaration book of provisional execution, and thereby received the principal and interest of the judgment, and the first instance court decided that the lawsuit for the debtor was withdrawn due to the commencement of rehabilitation procedures in exchange for the litigation for the confirmation of rehabilitation claims, whether the appellate court may seek a return of the provisional payment (affirmative), and in a case where a rehabilitation creditor has a part of the claim amount confirmed in the lawsuit for confirmation of rehabilitation claims which was changed in exchange for the future among the amount received by the first instance court according to the judgment of the declaration book of provisional execution for the claim for the performance before the change
[3] In a case where Gap corporation filed a lawsuit against Eul corporation for the payment of the construction price and delay damages, and the first instance court ordered Eul corporation to pay the principal and interest of the judgment up to that time, and Eul corporation paid the principal and interest of Eul corporation to Eul corporation, upon which Eul corporation decided to commence rehabilitation procedures and notified Eul corporation's claim for the above construction price as rehabilitation claim in the rehabilitation procedure, but Eul corporation's administrator Byung filed a claim for the payment of the construction price, defective objection, and changed its exchange of the claim for the confirmation of rehabilitation claim during the court below's continuation of rehabilitation procedure and ordered Gap corporation to determine the rehabilitation claim amount against Eul corporation and return the provisional payment, the case affirming the court below's claim for the return of provisional payment
[1] The effect of enforcement based on the judgment of the provisional execution sentence is not final and conclusive, and is based on the condition subsequent to the cancellation or alteration of the judgment on the merits or the provisional execution sentence. In other words, even if the execution was carried out by the declaration of provisional execution, it becomes final and conclusive that the execution cannot be carried out based on the previous judgment of the provisional execution sentence if the part or whole of the judgment on the merits becomes null and void. Therefore, if already received based on the declaration of provisional execution, it is not a legal cause, and thus, it shall be returned as unjust enrichment. The above application for return of provisional payment is a system that provides a simple path for the obligor subject to the execution by saving the costs, time, etc. of a separate lawsuit and by using the examination procedure on the merits, and its nature constitutes a preliminary counterclaim subject to the cancellation or alteration of the judgment on the merits.
[2] Whether the first instance court filed a lawsuit seeking monetary payment against the debtor and received the principal and interest of the judgment based on the lawsuit rendered in favor of the declaration book of provisional execution. In a case where the first instance court’s rehabilitation procedure for the debtor becomes to have been withdrawn due to a change in exchange for a lawsuit seeking confirmation of rehabilitation claims, it shall be deemed that the appellate court may seek the return of the provisional payment in the appellate proceedings, and it shall not be deemed that it is required to have been returned by filing a separate claim in the form of a separate lawsuit. Meanwhile, even if a rehabilitation creditor had part of the amount of the claim determined in the lawsuit for confirmation of rehabilitation claims that became final and conclusive in exchange for the former, among the amount of the claim received by the judgment of the first instance court prior to
[3] In a case where Gap corporation filed a lawsuit against Eul corporation for the payment of the construction price and damages for delay, and the first instance court ordered Eul corporation to pay the principal and interest of the judgment up to that time, and Eul corporation paid the principal and interest of Eul corporation to Eul corporation, upon which Eul corporation decided to commence rehabilitation procedures and notified Eul corporation's claim for the payment of the construction price as rehabilitation claim, but Eul corporation's administrator Byung filed a claim for the payment of the construction price as rehabilitation claim during rehabilitation procedures, and the court below changed the claim for confirmation of rehabilitation claim during the court below's continuous proceedings and ordered Gap corporation to determine the rehabilitation claim amount of Eul corporation and return the provisional payment claim, the case affirming the application for the return of provisional payment by Eul corporation, etc. on the ground that the total amount paid by Eul corporation pursuant to the first instance court's judgment is subject to the return of provisional payment.
[1] Article 741 of the Civil Act / [2] Article 131 of the Debtor Rehabilitation and Bankruptcy Act / [3] Article 131 of the Debtor Rehabilitation and Bankruptcy Act
Gwangju Construction Industry Co., Ltd. (Law Firm Dazel, Attorneys Dog-dam et al., Counsel for the plaintiff-appellant)
Maximum number of trustee of a rehabilitation company, which is a lawsuit taking over a gold mine business corporation;
Young-gu Housing Manager of Young-gu Housing Co., Ltd. (Law Firm Jeong & Yang LLC, Attorneys Ahn Sung-ho et al., Counsel for the defendant-appellant)
Seoul High Court Decision 2009Na99459 decided February 16, 2011
The appeal is dismissed. The costs of appeal are assessed against the plaintiff.
The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).
1. Regarding ground of appeal No. 1
The effect of execution based on the judgment of the sentence of provisional execution is not final and conclusive, but is based on the condition to cancel or change the judgment on the merits or the sentence of provisional execution.In other words, even if the execution was carried out by the sentence of provisional execution, it becomes final and conclusive that execution cannot be carried out based on the previous judgment of the sentence of provisional execution if the part or whole of the judgment on the merits becomes null and void. Therefore, if it has already been received by the sentence of provisional execution, it is not a legal cause, and thus, it shall be returned as unjust enrichment. The above application for return of provisional payment is a system that provides a simple way to save the costs, time, etc. of filing a separate lawsuit against the debtor subject to execution by the provisional execution and to undergo the examination of the application by using the proceedings on the merits, and its nature constitutes a preliminary counterclaim that is subject to the cancellation or modification of the judgment on the merits.
Meanwhile, Article 131 of the Debtor Rehabilitation and Bankruptcy Act provides that "No act extinguishing rehabilitation claims, such as repayment, repayment, etc., shall be performed without following the provisions of the rehabilitation plan, except as otherwise provided in this Act after the rehabilitation procedures have commenced."
In light of the above legal principles and provisions, where the first instance court filed a lawsuit seeking the payment of damages for delay against the debtor at the first instance court, and received the principal and interest of the judgment based on the judgment rendered in favor of the debtor, and where the lawsuit at the appellate court is deemed to have been withdrawn because of the commencement of rehabilitation procedures in exchange for a lawsuit for the confirmation of rehabilitation claims, it shall be deemed that the appellate court can seek the return of the provisional payment claim at the appellate court proceedings, and it shall not be deemed that the claim should be returned in the form of separate lawsuit. Meanwhile, even if the rehabilitation creditor received the amount of the claim at the first instance court's decision as to the claim for performance before the alteration of the lawsuit, the portion of the claim shall not be excluded from the return of the provisional payment claim. According to the reasoning of the judgment below and records, the plaintiff filed a lawsuit against the non-party 4 corporation (hereinafter referred to as "non-party 2") for the payment of damages for delay damages at the 50th instance court's 1,285,847,2019.
In light of the above facts in light of the legal principles as seen earlier, it is just that the court below accepted the defendants' request for the return of provisional payment since the amount paid by the non-party company to be exempted from the plaintiff's compulsory execution based on the judgment of the court of first instance upon the judgment of confirmation of rehabilitation claim is subject to the return of provisional payment, and there is no error in the misapprehension of legal principles as to the return of provisional payment or unjust
2. As to the grounds of appeal Nos. 2 and 3
The allegation in this part of the grounds of appeal is ultimately an issue of the selection of evidence and fact-finding, which are the exclusive authority of the lower court, and is not a legitimate ground of appeal.
3. Conclusion
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 Lee In-bok (Presiding Justice)