1. The Defendant’s KRW 49,066,575 as well as the Plaintiff’s KRW 5% per annum from June 30, 2016 to August 21, 2018.

1. Facts of recognition;

A. The Defendant filed a lawsuit against the Plaintiff et al. against the Plaintiff, etc. on the claim, including Suwon District Court Sejong District Court Decision 2015dan2756, and the said court rendered a judgment that “the Plaintiff shall jointly and severally with C, pay to the Defendant the amount of KRW 39,50,000 and the amount calculated at the rate of 20% per annum from April 14, 2015 to the date of full payment.”

B. Based on the declaration of provisional execution added to the above judgment, the Defendant applied for a compulsory auction on the land and building of Pyeongtaek-si D, which is owned by the Plaintiff, to Suwon District Court E, and each of the said real estate was sold to F on May 31, 2016, and the Defendant received dividends of KRW 49,06,575 on June 29, 2016 from the above provisional execution procedure.

C. On February 10, 2017, in the case of Suwon District Court Decision 2015Da27566, Suwon District Court Decision 2015Na3529, the appellate court, the appellate court of Suwon District Court Decision 2015Da3529, the Defendant’s claim against the Plaintiff was dismissed, and the judgment of the appellate court became final and conclusive upon dismissal of the appeal.

[Reasons for Recognition] Facts without dispute, entry of Gap evidence 1 to 4 (including each number), the purport of the whole pleadings

2. Determination

(a)the effect of enforcement based on the judgment of the sentence of provisional execution is not final and conclusive, and it is a condition subsequent to the Appellate Court that the sentence of provisional execution will be cancelled or changed;

In other words, even if the judgment on the merits was executed by a declaration of provisional execution, if the part or whole of the judgment on the merits becomes null and void, it shall not be executed based on the previous judgment on the declaration of provisional execution (see Supreme Court Decision 2011Da25145, Aug. 25, 201). In addition, if the judgment on the merits is changed in the appellate court later, the provisional execution obligee is liable to return the goods received by the declaration of provisional execution and to compensate for damages incurred by the provisional execution or by the exemption thereof.

However, the obligation of restitution and compensation for damages is the same as the original one in which no execution has been made.