Whether the appellate court should determine the propriety of the claim without considering the circumstances in which one of the parties paid the amount of provisional execution by one of the parties based on the judgment of the provisional execution declaration of the first instance court (affirmative

Article 213 of the Civil Procedure Act, Article 460 of the Civil Act

[Plaintiff-Appellant-Appellee] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Park Jong-soo et al., Counsel for plaintiff-appellant-appellant-appellee)

Plaintiff

Defendant

Jeonju District Court Decision 2008Na4448, 4455 Decided November 21, 2008

The appeal is dismissed. The costs of appeal are assessed against the plaintiff (Counterclaim defendant).

We examine the grounds of appeal.

1. As to the Plaintiff (Counterclaim Defendant)’s assertion of denying the loan

In full view of the evidence adopted, the court below recognized the fact that the plaintiff (Counterclaim defendant; hereinafter "the plaintiff") borrowed 30 million won from the defendant (Counterclaim plaintiff; hereinafter "the defendant") on March 23, 2007. In light of the records, the court below's above fact-finding is just, and the plaintiff's mere delivery of the defendant's loan to the non-party is without merit, and the ground of appeal that the plaintiff is merely a person who delivered the defendant's loan to the non-party is without merit, which is the fact-finding court's exclusive authority, and therefore

2. As to the Plaintiff’s assertion of repayment

The effect of repayment due to provisional execution is not conclusive, but is only the result of the cancellation condition for the declaration of provisional execution or the cancellation of the judgment on the merits at the appellate court. Thus, even if the defendant paid the amount of provisional execution according to the judgment of the court of first instance, the appellate court should decide the validity of the claim without considering it (see Supreme Court Decision 93Da26175, 26182, Oct. 8, 1993).

In this regard, the decision of the court below is just on the premise that the defendant did not fully take into account the fact that he received 3,063,000 won out of the amount of the provisional execution declaration in the procedure of compulsory execution conducted with the judgment of the court of first instance as the executive title, and the decision of the court below to determine the propriety of the principal lawsuit and the counterclaim claim in this case is just, and there is no violation

Therefore, this part of the grounds of appeal cannot be accepted.

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 Jeon Soo-ahn (Presiding Justice)