In case where a provisional execution obligor has deposited a certain amount of money as a security in the course of demanding a suspension of the compulsory execution while lodging an appeal against the judgment with a declaration of provisional execution, whether or not a provisional execution obligee's liability for damages against a debtor of provisional execution due to such deposit is recognized only

The legislative purport of Article 215(2) of the Civil Procedure Act, which provides for liability of a provisional execution creditor for damages where a declaration of provisional execution loses its effect, is that a provisional execution by a judgment in favor of the provisional execution creditor, permits the creditor of a provisional execution to realize the time of the right without waiting for the confirmation of the judgment on the merits of the provisional execution. On the other hand, if the judgment which forms the basis of such provisional execution was cancelled in the appellate court after it, and thereby the provisional execution becomes null and void, the declaration of provisional execution would result in an unreasonable adjustment of interests between the parties concerned. In this context, “the liability of a provisional execution creditor for the damages of a provisional execution obligor” includes all damages arising from proximate causal relation with the provisional execution creditor either intentionally or negligently, and it is recognized that a provisional execution creditor has to enter into the current provisional execution procedure without any reasonable ground, or that a debtor has to obtain from the court an exemption of provisional execution by taking account of the circumstance that the provisional execution creditor would have to obtain from the above provisional execution without a declaration of provisional execution (see Article 213(1) of the Civil Procedure Act).

Articles 213(1), 215(2), 500(1), and 501 of the Civil Procedure Act

Supreme Court Decision 79Da1476 Decided September 25, 1979 (Gong1979, 1226) Supreme Court Decision 84Meu1695 Decided December 26, 1984 (Gong1985, 247)

Korea Securities Finance Co., Ltd. (Law Firm Hy & Yang, Attorneys Noh Jeong-soo et al., Counsel for the plaintiff-appellant)

Defendant (Law Firm Sejong, Attorneys Im Young-soo et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2008Na26577 decided January 23, 2009

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Article 215(2) of the Civil Procedure Act provides, “Where a judgment on the merits of a provisional execution is altered, the court shall order the plaintiff to return goods paid according to the declaration of provisional execution in its judgment upon request of the defendant, and to compensate the damage incurred due to the provisional execution or the damage incurred to obtain the exemption therefrom.” The legislative intent of this provision is to: (a) the provisional execution by the judgment in favor of the declaration of provisional execution allows the plaintiff to realize the time of the right without waiting the confirmation of the judgment on the merits; (b) while the judgment which becomes the basis of the judgment after the provisional execution is revoked at the appellate court, which becomes the basis of the judgment after the provisional execution, and thereby, (c) the provisional execution is to fairly coordinate interests between the parties due to the provisional execution, and thus, (d) the liability of the provisional execution obligee for the damage incurred to obtain the exemption of provisional execution is recognized without asking the existence of intention or negligence by the creditor on the grounds of the provisional execution; and (d) the scope of proximate causal relation between the provisional execution and all damage arising from the judgment.

In light of the above facts, it is reasonable to view that in an individual case where a provisional execution obligee’s liability arises for damages against “damage incurred to be exempted from provisional execution” pursuant to the above Article 213(1) of the Civil Procedure Act, unless there is a good reason not to attach a declaration of provisional execution even though there is no request from the parties concerned (see Articles 501 and 500(1) of the Civil Procedure Act), further measures to be taken by a provisional execution obligee for the performance of a provisional execution obligee should be deemed unreasonable in light of social norms and norms. Therefore, in the case of this case where the obligor, as seen in the above case, entered a judgment in favor of the declaration of provisional execution, but at least the obligor’s liability for damages arising from the deposit obligee’s provisional execution is not affirmed due to the fact that the provisional execution became invalidated due to the fact that the obligor has to deposit or seek for provisional execution without any specific reasons, such as the content or circumstance of the lawsuit by the provisional execution obligee prior to the commencement of a lawsuit or provisional execution, in light of the aforementioned attitude of the provisional execution obligee’s claim or provisional execution procedure.

2. Nevertheless, the court below rejected the defendant's assertion that, with respect to the judgment against part of the provisional execution declaration, the plaintiff of this case filed an application for the suspension of compulsory execution on the grounds of appeal against the judgment against the part of the provisional execution declaration, the amount equivalent to the difference between the interest of 5% per annum under the Civil Act and the interest accrued on the deposit money prior to the date of recovery as damages suffered by the plaintiff for the exemption of provisional execution, and that the defendant's liability for damages is affirmed, on the other hand, unless there is any evidence supporting that the provisional execution commenced or the provisional execution was imminent, the above liability cannot be borne.

In so determining, the lower court erred by misapprehending the legal doctrine on Article 215(2) of the Civil Procedure Act or failing to exhaust all necessary deliberations, which affected the conclusion of the judgment, and the Defendant’s ground of appeal assigning this error is with merit.

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Ji-hyung (Presiding Justice)