Effect of performance by the judgment with a declaration of provisional execution, and whether it constitutes a ground for objection to the claim

If a debtor, who was sentenced to a provisional execution, voluntarily pays to the creditor the principal and interest of the court of first instance up to the time of the decision after one month from the date of declaration, but appeals against the amount cited in the court of first instance against the judgment of the court of first instance, it is reasonable to deem that the debtor has a debt equivalent to the amount cited in the judgment of the court of first instance and has paid the amount to the creditor in order to prevent the extension of the damages for delay as cited in the judgment of the court of first instance and to avoid compulsory execution based on the declaration of provisional execution attached to the judgment, not to pay the amount to the creditor, but to prevent the extension of the damages for delay and to exempt the creditor from the execution based on the declaration of provisional execution attached to the judgment of the court of first instance. As such, even if the debtor asserts the fact that the amount was paid at the court of first instance, the appellate court does not take such a reason into account, so the effect of extinguishment of the claim by the payment of the amount becomes effective only when the judgment becomes final and conclusive. Accordingly, the reason for the debtor to pay the amount is a legitimate ground

Articles 199 and 505 of the Civil Procedure Act, Article 460 of the Civil Act

Supreme Court Decision 90Meu26, 33 decided May 2, 1990 (Gong1990, 1369) 93Da26175, 26182 decided October 8, 1993 (Gong1993Ha, 3049) 94Da22446 decided Nov. 11, 1994 (Gong1994Ha, 2361) 94Da58490, 58506 decided Apr. 21, 1995 (Gong195Sang, 1934)

Plaintiff 1 and 2 others, Counsel for the plaintiff-appellant

Defendant-Appellee et al., Counsel for the defendant-appellant

Seoul Civil District Court Decision 94Na46922 delivered on February 28, 1995

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

We examine the grounds of appeal.

1. Based on the evidences of macroscopic evidence, the court below held that the defendant was awarded a contract for the construction of a new building with the plaintiff on April 15, 191, and completed the construction work and completed the completion inspection on November 9, 1991, but the plaintiff did not pay part of the construction cost, and as the plaintiff did not pay part of the construction cost, the court below filed a lawsuit against the plaintiff for the claim for remainder payment of construction from the above court on December 2, 1992 against the defendant on December 2, 1992.

From March 27, 1992 to December 2, 1992, part of the judgment of winning a provisional execution ordering the payment of the amount of 5% per annum from the next day to the next day. The plaintiff filed an appeal with the Seoul High Court as 93Na7107. The defendant filed an appeal with the above appellate court by asserting that all the plaintiff and the defendant were to bear the amount of 13,000,000 won of value-added tax on the above construction contract in addition to the above construction contract, the above appellate court concluded the pleadings on July 27, 1993, and ordered the above appellate court to dismiss both appeals on September 7, 1992. The judgment of the court of first instance became final and conclusive since all the plaintiff and the defendant did not raise an appeal to the court of first instance, and the non-party 2's appeal to the court of first instance (the director of the tax office of the tax office of the Republic of Korea) acknowledged the defendant's claim for the above construction contract amount as 940% per 192,2909.7.

2. On the first ground for appeal

Even if Korea acquired the right to collect the above claim for construction price by seizing the above claim for construction price during the first instance trial, the Republic of Korea did not participate in a succession under Article 74 of the Civil Procedure Act, and as long as the plaintiff and the defendant who are the party to the above lawsuit did not make an application for acceptance of a lawsuit under Article 75 of the Civil Procedure Act, and the above lawsuit is concluded as a lawsuit between the plaintiff and the defendant, and the judgment is rendered and confirmed as above, res judicata and executive force of the above judgment shall arise against the plaintiff and the defendant who are the party to the lawsuit, and as such, the above judgment is null and void by a judgment against a person who has no capacity to be a party, it cannot be said

3. On the second ground for appeal

A. According to the reasoning of the lower judgment, the lower court determined that the Plaintiff’s payment of the above money to the Republic of Korea on December 30, 1992 was in response to the collection by the Republic of Korea, which acquired the Plaintiff’s right to collect the above construction payment obligation by means of the above disposition of seizure of claims, and that the above payment of the construction payment obligation to the Defendant was voluntarily repaid, and at the same time, the Plaintiff’s payment of the construction payment obligation to the Defendant extinguished, but the Plaintiff’s payment of the above money was not a legitimate ground for

B. However, according to the facts established by the court below, the plaintiff paid 21,437,460 won of the principal and interest until the judgment was rendered on December 30, 192, which was about one month after the judgment of the court of first instance, to the director of the district tax office of Gangwon-gu. However, in light of these facts, the plaintiff filed an appeal against the above judgment of the court of first instance and raised an objection against the amount cited in the court of first instance. Thus, in light of these facts, the plaintiff paid the above money to the Republic of Korea to prevent the expansion of damages for delay cited by the judgment of the court of first instance and to avoid compulsory execution based on the provisional execution to be attached to the above judgment, and it is reasonable to deem that the above money was paid to the Republic of Korea to prevent the expansion of damages for delay and to avoid compulsory execution based on the sentence of provisional execution to be attached to the judgment of the court of first instance. Accordingly, since the money paid by the court of first instance does not become final and conclusive, even if the plaintiff asserted the above payment of the above money in the court of appeal.

In addition, according to the records of this case, the plaintiff's assertion in the court below is based on the declaration of provisional execution, so its effect cannot be asserted at the court of appeal, and therefore, it seems that the effect of the above payment of the construction price constitutes a ground for objection as it occurred after the conclusion of arguments at the court of fact-finding in the above lawsuit.

C. Therefore, the court below erred by misapprehending the nature of the plaintiff's payment of the above amount and misapprehending the legal principles as to the ground for objection, and the ground for appeal is with merit.

4. Therefore, without examining the remaining grounds of appeal, we reverse the judgment below and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Yong-hun (Presiding Justice)