[1] Whether the final order of the inspection can be changed solely with the intention of the chief public knowledge (negative)

[2] The case where a request for return of the payment by a declaration of provisional execution is allowed in a final appeal

[1] If a person, who had established a temple and executed a Buddhist temple as the chief of the temple, was registered as the Buddhist temple ○○ at the time of the construction of the temple and was the temple belonging to the Buddhist Buddhist temple ○○○○, the chief of the temple may not change without permission the subordinate temple at least by a person who was widely known regardless of his/her will, so the temple shall still be the temple belonging to the Buddhist Buddhist temple ○○○.

[2] An application for the return of a payment due to a declaration of provisional execution under Article 201(2) of the Civil Procedure Act is a system that requires the obligor, who has been executed by the provisional execution, to file a counterclaim or a subsequent suit by setting up a simplified way to undergo the examination of the application through the procedures of deliberation on the merits, and in principle, the obligor, who has been executed, files an objection to the merits, and files an application before the closing of argument in the appellate trial where the merits are examined. In order to make a statement of the fact and to determine whether it is reasonable, it is necessary to hold oral arguments corresponding to the lawsuit. Since the appellate court cannot deliberate and confirm factual relations such as what payment was implemented by the execution and what scope of damage was caused by the execution, it is impossible to examine and determine the facts alleged as the grounds for the application, and it is not necessary to do so without any dispute between the parties, an application for the return of a payment due to a declaration of provisional execution in the appellate court may not be allowed.

[1] Articles 31 and 68 of the Civil Act / [2] Articles 199(2) and 201(2) of the Civil Procedure Act

[1] Supreme Court Decision 89Da31468 delivered on June 13, 1997 (Gong1997Ha, 2144 delivered on November 11, 1980) 80Da205 delivered on November 11, 1980 (Gong1981, 1368 delivered on December 12, 1995) (Gong195Da38127 delivered on December 12, 1995) (Gong196, 382)

[Defendant-Appellee] Jinsa (Attorney Lee Jin-young)

Defendant 1 and one other (Attorney Kim Jae-chul, Counsel for the defendant-appellant)

Seoul High Court Decision 95Na25499 delivered on December 17, 1996

The judgment below is reversed. The case is remanded to the Seoul High Court. The defendant's request to return the payment due to the provisional execution sentence is dismissed.

The grounds of appeal are examined.

1. Summary of fact-finding and judgment of the court below

According to the reasoning of the judgment of the court below, the non-party 1 was deceased on April 16, 198, and the non-party 2 was deceased on the non-party 9's non-party 1 and the non-party 9's non-party 2's non-party 9's non-party 1's non-party 9's non-party 9's non-party 1's non-party 9's non-party 9's non-party 9's non-party 1's non-party 2's non-party 9's non-party 9's non-party 9's non-party 9's non-party 1's non-party 2's non-party 9's non-party 1's non-party 2's non-party 9's non-party 1's non-party 9's non-party 1's non-party 2's non-party 1's non-party 9's non-party 2's non-party

2. Plaintiff’s ground of appeal

As the court below decided on January 1, 1980, Nonparty 2 established a plaintiff temple on the land of this case purchased by Nonparty 1 with Nonparty 1, Nonparty 2 executed it as a chief inspector, Nonparty 1 did look at the plaintiff temple and managed the property as a chief inspector. Nonparty 2 registered the plaintiff temple as the Buddhist inspector at the time of the formation of the plaintiff temple and registered it as the Buddhist inspector at around 1980, and Nonparty 2 was the Buddhist inspector at the time of the plaintiff temple's Buddhist inspector's Buddhist inspector's Buddhist inspector's Buddhist inspector's Buddhist inspector's ○○○. The chief inspector at the court below's 1980, the chief inspector at the 4th class 6th class 6th class 6th class 6th class 6th class 6, and the chief inspector at the 4th class 4th class 6th class 6th class 6th class 6th class 6th class 1, 1989, and the chief inspector at the court below's 4th class 8th class 6th class 6th.

Nevertheless, the court below's rejection of the lawsuit of this case on the ground that it is difficult to recognize the non-party 1 as the chief inspector of the plaintiff's temple as its representative cannot be deemed to have committed an unlawful act affecting the conclusion of the judgment by misunderstanding the facts contrary to the rules of evidence. The part pointing this out in the grounds of appeal

3. The defendant's attorney's request for the return of the payment is examined by a declaration of provisional execution.

A request for the return of a payment due to a declaration of provisional execution under Article 201(2) of the Civil Procedure Act is a system that requires an obligor subject to a provisional execution to file a counterclaim or a subsequent suit to save the costs, time, etc. of filing a counterclaim or a subsequent suit by having the obligor subject to a provisional execution undergo a review on the merits of the case. In principle, the obligor subject to the execution shall file an objection to the merits of the case before the closing of argument in the appellate court which examines the merits, and in order to make a statement of the facts constituting the grounds for the request and to determine its propriety, the oral argument is necessary. The appellate court cannot examine and confirm factual relations such as what payment was implemented by the execution, and what scope of damage was done by the execution, unless there is no dispute between the parties on the facts alleged as the grounds for the application, and it is not permissible to file an application for the return of a payment due to a declaration of provisional execution from the appellate court (see Supreme Court Decision 80Da1385, Nov. 11, 1980).

4. Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination, and the defendant's application for return of payment due to a declaration of provisional execution is dismissed, and it is so decided as per Disposition with the assent

Justices Park Jong-chul (Presiding Justice)