[1] The validity of deposit for partial repayment of a debt (negative in principle)

[2] The period during which the obligor is obligated to repay the amount of litigation costs according to the determination of the amount of litigation costs, and the time

[3] In a case where a title of execution ordering a payment of money fails to reimburse expenses for such execution, whether a person can seek a exclusion from the whole executory power (negative)

[4] The case holding that since the executory power of the decision on the amount of litigation costs is limited to the amount of litigation costs determined by the decision, damages for delay after the due date for payment, and expenses for compulsory execution, the debtor's deposit for repayment excluding interest cannot be deemed as valid by the deposit of part

[1] Article 487 of the Civil Act / [2] Article 387 of the Civil Act, Article 110 of the Civil Procedure Act / [3] Article 479 (1) of the Civil Act, Article 53 (1) of the Civil Execution Act / [4] Articles 387, 479 (1), and 487 of the Civil Act, Article 110 of the Civil Procedure Act, Article 53 (1) of the Civil Execution Act

[1] Supreme Court Decision 76Da1866 delivered on September 13, 197 (Gong1977, 10287) Supreme Court Decision 98Da17046 delivered on October 13, 1998 (Gong1998Ha, 2662) / [3] Supreme Court Decision 89Da2356 delivered on September 26, 198, 89Da2356 delivered on September 26, 198 (Gong1989, 1563) Supreme Court Decision 91Da41620 delivered on April 10, 192 (Gong192, 1538)

Plaintiff

Defendant

Seoul Central District Court Decision 2007Na4737 Decided December 14, 2007

The judgment of the court below is reversed, and the case is remanded to the Seoul Central District Court Panel Division.

The grounds of appeal are examined.

1. The judgment of the court below

According to the judgment of the court below, the court below determined that the defendant applied for a determination of the amount of litigation costs against the plaintiff as Seoul District Court 2002Kagro5973 and that the plaintiff should repay 4,677,344 won to the defendant as litigation costs in relation to the claim for reimbursement amount of Seoul District Court 98Gahap25899 (Seoul High Court 2000Na3493), and that the decision was finalized on June 24, 2003; the defendant applied for a compulsory auction on the plaintiff's real estate to receive this amount; the defendant applied for a compulsory execution; the defendant paid 3,283,260 won to the plaintiff's real estate; on April 26, 2006, the plaintiff paid 3,203,260 won to the defendant as deposit; on November 1, 2007, the court below determined that the above amount of litigation costs had an executory power to the above court 203,360 won, and each of the above amount of litigation costs deposited was discharged.

2. Judgment of the Supreme Court

However, we cannot accept the judgment of the court below for the following reasons.

In order for the obligor to be exempted from the obligation by deposit due to the cause of deposit, the entire amount of the obligation shall be deposited, and the deposit of a part of the obligation shall not take effect, unless the obligee accepts it, unless there are special circumstances under which the provision of part of the obligation may be deemed effective (see Supreme Court Decision 76Da1866 delivered on September 13, 197, etc.).

On the other hand, the obligation to repay the amount of litigation costs according to the decision to determine the amount of litigation costs becomes final and conclusive, and the due date comes only when the obligor becomes final and conclusive, and the obligor is liable for delay when he becomes aware that the due date

In addition, when a debtor pays expenses and interest of one or more obligations, if the person performing the performance has performed the performance which has failed to extinguish the entire obligation, such performance shall be appropriated in the order of the expenses, the interest and the principal (Article 479(1) of the Civil Act). The expenses required for compulsory execution shall be borne by the debtor and the debtor shall be reimbursed by the execution. As such, with respect to the executive titles ordering the payment of money, the exclusion of the whole executory power may not be sought unless the expenses for the execution are reimbursed (see Supreme Court Decisions 89Da2356, Sep. 26, 1989; 91Da41620, Apr. 10, 1992, etc.).

Examining the facts acknowledged by the court below in light of the above legal principles, the amount to be paid by the plaintiff to the defendant by the final decision of the amount of litigation costs of this case shall be the amount of litigation costs determined by the final decision of the amount of litigation costs, and damages for delay and expenses for compulsory execution after the due date for payment. The plaintiff deposited the repayment on April 26, 2006, and the 3,283,260 won deposited on November 1, 2007, respectively, and the 3,283,260 won deposited on November 1, 207, respectively. According to the records, it can be known that the defendant expressed his intention of refusing to accept the deposit on April 26, 2006, each of the above repayment deposits shall not be deemed valid unless there are special circumstances.

Nevertheless, the court below determined that each of the above repayment deposits is valid without examining and determining the existence of the above special circumstances. Thus, the court below erred in the misapprehension of legal principles as to the objective scope of the executive title's executory power or the deposit for repayment, or failing to exhaust all necessary deliberations, which affected the conclusion of the judgment. The ground of appeal on this point has merit.

3. Conclusion

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 Park Si-hwan (Presiding Justice)