[2] In a case where a creditor who filed an application for provisional seizure filed a lawsuit on the merits and the debtor filed a counterclaim, and the court rendered a decision in lieu of a conciliation order ordering the creditor to pay part of the amount claimed as a counterclaim, whether such decision may be deemed as the case where the execution creditor loses the lawsuit on the merits after the execution (negative)

[2] In a case where, after filing a request for provisional seizure, a creditor files a lawsuit on the merits and the decision in lieu of the conciliation of a debtor files a counterclaim is confirmed by both parties, even though the contents of the decision are not payable by the creditor from the debtor, and instead, the creditor orders the creditor to pay part of the amount that the debtor seeks as a counterclaim, it does not necessarily mean that the execution creditor loses the amount of money that the debtor seeks as a counterclaim after the execution. The reason is that the court's decision in lieu of conciliation is aimed at the fair resolution of the case by taking into account the parties' interests and all other circumstances, and it cannot be deemed that only the existence of a claim claim is determined.

A. Comprehensively taking account of all the evidence presented by the court below, the construction contract of this case was concluded on or around November 1996 between the plaintiff and the defendant around the end of November 1, 199, and the plaintiff began construction from the end of November of the same year, but it was ordered to suspend construction due to the removal of residents nearby the construction area. The defendant, on January 31, 1997, suspended construction from the middle of February of the same year on the ground that the plaintiff had resumed construction, and again the plaintiff would again go against the residents' agricultural water and water supply problems. The defendant, on January 6, 1997, paid 00,000,000 won to the plaintiff about the construction contract of this case and 90,000 won, 30,000,000 won, 70,000,000 won from February 3 of the same year and paid 97, 197.

B. In addition, the court below acknowledged the plaintiff's assertion that the defendant's claim for the payment of KRW 70,00,000,00 in total to the contract amount of the construction work of this case was dismissed due to the defendant's mistake, such as that the defendant paid 70,000,000 won to the plaintiff as the down payment and the intermediate payment, the defendant's application for provisional attachment and the principal lawsuit were not implemented on January 31, 1997 with neighboring residents, and thus, the construction work of this case was discontinued due to the plaintiff's failure to pay the above amount to the defendant, although the plaintiff did not have a duty to return it to the defendant, the plaintiff's claim that incurred losses as alleged in the plaintiff's assertion was made unfairly by executing provisional attachment for each corporeal movable property owned by the plaintiff as the preserved right. In light of the above reasoning, the court below acknowledged that the defendant's claim for the payment of KRW 20,000,000 was not made to the plaintiff or that it did not have been determined to pay more than 00000,00.

2. The judgment of this Court

A. Although preservative measures such as provisional seizure and provisional disposition are executed by the court's trial, whether a creditor has a substantive claim is entrusted to the lawsuit on the merits and is under the responsibility of the creditor. Thus, if an execution creditor after such execution has become final and conclusive against the debtor in the lawsuit on the merits, it shall be presumed that the execution creditor has intention or negligence with respect to the damage incurred to the debtor due to execution of such preservative measures, and therefore, he/she shall be liable for compensation for damage caused by unfair execution (see Supreme Court Decision 98Da52513, Apr. 13, 199). However, in the case where the creditor filed a lawsuit on the merits after filing a provisional attachment application and the debtor filed a counterclaim and the decision in lieu of the conciliation of the court is accepted and confirmed by both parties, even though the contents of such decision are not payable by the creditor to the debtor, it shall be deemed that there is no amount to be paid by the execution creditor as a counterclaim, and thus, it shall not be deemed that there is no agreement between the parties in the lawsuit where the execution creditor loses a claim.

B. Examining the relevant evidence in light of the records on the premise of these legal principles, the court below cannot be readily concluded that the defendant made a provisional attachment or was able to know such fact, without a reasonable reason, solely based on the facts stated in its reasoning, despite the absence of the preserved claim, based on the facts in its reasoning, and the court below is just in holding that there is no evidence to recognize such facts otherwise. In so doing, contrary to what is alleged in the grounds of appeal, there is no error of law such as violation of the rules of evidence

3. Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yoon Jae-sik (Presiding Justice)