Liability for damages caused by the execution of provisional disposal of real estate

If the execution creditor of a provisional disposition has lost in the lawsuit on the merits, he/she shall be liable for damages due to the execution of such provisional disposition, unless there are special circumstances.

Article 750 of the Civil Act

Supreme Court Decision 66Da605 delivered on May 24, 1966 (Supreme Court Decision 1342Da1342 delivered on May 24, 196)

net Plaintiff 1 and 2 others

Defendant

Daegu District Court (70 Ghana1761)

The judgment of the first instance is modified as follows.

The defendant shall pay to the plaintiff 2 and 3 the amount of 196,362 won, the amount of 65,454 won, the amount of 130,900 won, the amount of 720,000 won, and the amount of 196,362 won, the amount of 65,454 won, each to the non-party 2, and the non-party 3 respectively, and the amount of 130,908 won and the amount of 5% per annum from September 20, 1970 to the time of full payment.

The plaintiffs' remaining claims are dismissed.

The costs of lawsuit shall be borne by the defendant through the first and second trials.

The defendant shall pay to the plaintiff 2 and 3 money 796,666 won, the deceased plaintiff 1, and the plaintiff 1, the plaintiff 272 won, the 217,272 won, each of which is 72,424, the non-party 4, the non-party 5, and the non-party 6 each of which is 14,848 won, and 5 percent per annum from the day following the day when the duplicate of each lawsuit is served on the defendant to the non-party 2 and the non-party 3.

Litigation costs shall be borne by the defendant.

The part of the judgment of the first instance against the defendant shall be revoked.

The plaintiffs' claims are dismissed.

The costs of lawsuit shall be borne by the plaintiffs through the first and second trials.

As the plaintiffs applied for a compulsory auction on the above automobiles based on the original copy of the executory protocol under the Daegu District Court No. 67A30 against the above non-party company based on the executory power of lawsuit by the Daegu District Court No. 67A30, the plaintiffs applied for a compulsory auction on the above automobiles, and the facts delivered on November 7, 1967 with the order of delivery by the court of execution do not conflict between the parties, and if all of the arguments in Gap No. 1,6,7 and Eul No. 1-5, and No. 2 are described in each of the above evidence No. 6, the defendant held the above automobile owned by the above company as title trust to the above company, and the settlement before the above auction was based on the above auction, and the above auction was null and void by the above non-party company No. 3, the above judgment of the court of appeal No. 60, the defendant's dismissal of the provisional disposition No. 7, which had been declared to the above court of appeal No. 960, and the above judgment No. 297, the defendant's appeal No.

As seen earlier, the Defendant’s legal representative asserted that the auction of this case is null and void, and that there is no negligence in the execution of the provisional disposition of this case by the Defendant who believed that there was no negligence in the execution of the provisional disposition of this case. However, the evidence Nos. 1 and 2 as to this point is insufficient, and there is no evidence that the Defendant did not have been negligent in the execution of the provisional disposition of this case.

Therefore, since the execution of provisional disposition of this case is unfair, the defendant is liable for damages suffered by the plaintiffs. Furthermore, according to the facts and evidence acknowledged earlier, it is recognized that the execution of provisional disposition of this case was continued after December 20, 1967 when the provisional disposition of this case was executed after June 30, 1970 when the judgment of this case became final and conclusive. According to the testimony of non-party 7 of the first instance court witness non-party 7, it can be recognized that the net profit of this case which can be gained from the operation of this case was 100,000 won, and since the testimony of non-party 8 of the first instance court witness non-party 1 did not interfere with the above recognition and there was no other counter-proof as to the damages, the plaintiffs lost the profits of this case within the above execution period from January 1, 1968 to January 1, 1970 within the above execution period and the profits of the plaintiff 200,000 won.

Therefore, the defendant is obligated to pay 720,000 won per annum to the plaintiff 2 and 3, each of the above 2,160,000 won to the plaintiff 1, the plaintiff 1, the plaintiff 1, the plaintiff 1, and the non-party 2 and the non-party 3, the plaintiff 1, the plaintiff 1, the 196,362 won per annum to the non-party 2 and the non-party 3, the plaintiff 1, the plaintiff 1, the 196,362 won, each of which was 65,454 won, the non-party 4, the non-party 5, and the non-party 6, each of which was 130,908 won and the damages for delay from August 20, 1970 to the time when the part requested by the plaintiffs were delivered to the defendant. Thus, the plaintiff's claim of this case is justified by applying Article 95 of the Civil Procedure Act to the remainder within the scope of the judgment.

Judges Seo-sok (Presiding Judge) Hun-Gaon Park Jae-joon