Plaintiff 1 and one other (Law Firm Spah, Attorneys Spah-ho et al., Counsel for the plaintiff-appellant)

Defendant (Law Firm current, Attorney Jeon Sang-hee, Counsel for the defendant-appellant)

April 6, 2017

Seoul Northern District Court Decision 2015Gahap25109 Decided October 27, 2016

1. The defendant's appeal is all dismissed.

2. The costs of appeal shall be borne by the Defendant.

1. Purport of claim

The defendant's compulsory execution based on the judgment of the Seoul Northern District Court 2007Gahap24777 against the plaintiffs is all denied.

2. Purport of appeal

The part against the defendant in the judgment of the first instance is revoked, and all of the plaintiffs' claims corresponding to the revocation are dismissed.

1. Basic facts

A. Lawsuit of partition of co-owned property and judgment of the court of first instance

1) The Plaintiffs were 2, among 47 co-owners of Dongdaemun-gu Seoul ( Address omitted) and 31 lots (hereinafter “instant land”).

2) On March 19, 2007, 13 co-owners including the plaintiffs (hereinafter collectively referred to as "the plaintiff group") filed a lawsuit against the remaining co-owners including the defendant (hereinafter collectively referred to as "the defendant group") for the partition of co-owned property (Seoul Northern District Court 2007Gahap2477).

3) On August 13, 2009, the first instance court sentenced the following judgment (this judgment constitutes a title of execution for which the plaintiffs seek the exclusion of enforcement power in this case; hereinafter "the subject judgment").

Pursuant to the portion of the land in the main text of the judgment, the land in this case shall be divided in kind to the plaintiff group, and the remaining part shall be divided in kind with the share of the defendant group. However, as to the part divided in excess of the share of the plaintiff group as a result of the division in kind as above, the defendant group of the judgment shall pay compensation for the value (hereinafter referred to as "price compensation") to the defendant group. The plaintiff 1 and the plaintiff 2 shall pay to each defendant 81,915,047 won and the amount at the rate of 5% per annum from the day following the day of this judgment to the day of full payment (the order of the price compensation part related to the plaintiffs of this case).

B. Judgment of the appellate court

The plaintiffs and some of the defendant groups of the judgment (the defendant of this case seems to have not appealed) appealed to the judgment (Seoul High Court 2009Na93529), and the plaintiffs had withdrawn the appeal during the appellate trial, and only some of the defendant groups of the judgment did not withdraw the appeal by withdrawing the appeal. On August 17, 2012, the appellate court rendered a judgment that changed the judgment on August 17, 2012, to put the land of this case to auction and distribute the price thereof.

C. The reversal and return in the final appeal

The judgment of the Supreme Court, including the plaintiffs, appealed against the appellate court's judgment (Supreme Court Decision 2012Da83261). The Supreme Court erred in the appellate court's judgment ordering payment on July 10, 2014, which rendered an order to pay the price, and thus, reversed the judgment of the appellate court and remanded the case to the lower court.

(d) Termination of a lawsuit following the withdrawal of an appeal;

After remanding, the appeal court (Seoul High Court 2014Na37028) was pending on November 19, 2014 and January 15, 2015, all of the appeals filed by some of the defendant groups were terminated by withdrawing the appeal in sequence.

(e) Deposit of judgment money;

On July 28, 2015, the Plaintiffs deposited 84,091,967 won (=81,915,047 won + 2,176,920 won in interest for delay calculated at the rate of 5% per annum from January 16, 2015 to July 28, 2015, which is the date following the date of withdrawal of appeal, as well as the interest for delay calculated at the rate of 2,176,920 won in total from January 16, 2015 to July 28, 2015, 84,091,967 won in total (=81,915,047 won + 2,176,920 won in interest for delay) x 84,080,75 won in which the mother and child is actually deposited (hereinafter the same shall apply).

[Reasons for Recognition] Facts without dispute, clear facts in record, Gap evidence 1 through 3, Eul evidence 1 and 2 (including each number; hereinafter the same shall apply), the purport of the whole pleadings

2. Summary of the parties' arguments

A. The plaintiffs

The starting date of the obligation to pay the price compensation pursuant to the subject decision should be based on the date of withdrawal of appeal in which the plaintiffs can know the final judgment. The plaintiffs deposited the principal of the price compensation pursuant to the subject decision and damages for delay calculated at the rate of 5% per annum from January 16, 2015, the following day after the withdrawal of appeal. Accordingly, since the plaintiffs' monetary liability to the defendant has expired all, compulsory execution against the plaintiffs should be dismissed.

B. Defendant

1) The subject decision became final and conclusive retroactively on September 10, 2009, when the period of appeal expires following the withdrawal of appeal. Accordingly, the Plaintiffs shall pay to the Defendant the amount for which the subject decision ordered payment and the delay damages calculated at the rate of 5% per annum from the day following the expiry date of the period of appeal, which is the final and conclusive

2) The Defendant’s execution cost should also be paid by the Plaintiffs.

3. Determination

A. Determination on the initial date of the damages for delay

1) Where an appeal is withdrawn, the lawsuit shall be deemed not to have been pending at the appellate court from the beginning (Articles 393(2) and 267(1) of the Civil Procedure Act), but the final judgment of the first instance exists, unlike withdrawal of the lawsuit to file an appeal or waiver of the right to file an appeal. As such, where an appeal is withdrawn after the expiration of the appeal period, the final judgment of the first instance becomes final and conclusive retroactively at the time when the appeal period expires (see, e.g., Supreme Court Decision 2015Meu3455, Jan. 14, 2016). On the other hand, even after the final judgment of the appellate court was rendered, where the final judgment was reversed at the appellate court and the case is remanded to the appellate court, the final judgment first becomes null and void, and thus, the appellant may freely withdraw the appeal until a new final judgment is rendered (see Supreme Court Decision 94Da51543, Mar. 10, 1995).

According to these legal principles, the "this date of the judgment" as stated in the order on the compensation for price in the judgment is reasonable as follows: last, from September 29, 2009 when the judgment was served on the parties to the lawsuit claiming co-litigants, the parties to the lawsuit claiming co-owned property as the requisite co-litigants; and last, from October 13, 2009 when the 14th day after the appeal period was served on September 29, 2009. Therefore, the amount of the claim based on the order on compensation for price, which is an executive title, shall be deemed to be calculated at the rate of 5% per annum from October 14, 2009, the following day after the final date of the judgment.

2) However, even if a right is based on a final and conclusive judgment, it shall be exercised in good faith and it shall not be permitted in cases where enforcement based on the judgment becomes an abuse of rights. Thus, an executory obligor may seek the exclusion of enforcement by a lawsuit seeking objection. In full view of all the circumstances such as the nature and contents of the right established by the judgment in a case where the contents of a final and conclusive judgment are contrary to substantive legal relations, the circumstances leading up to the establishment and enforcement of the judgment, and the impact on the parties concerned, in a case where it is deemed that enforcement based on the final and conclusive judgment is considerably unfair and allowing the other party to execute it is clearly against the justice and thus it is not permissible to execute it as an abuse of rights (see, e.g., Supreme Court Decisions 9Da4862, Sept. 12, 1997; 9Da32899, Nov. 13, 2001).

Examining the following circumstances that can be recognized and inferred based on the facts recognized as seen earlier and the purport of the entire pleadings in light of the foregoing legal doctrine, compulsory execution on the portion exceeding 5% per annum from January 16, 2015 to the day of full payment, which is the day following the day of withdrawal of appeal, out of the amount of damages for delay ordered by the subject judgment to pay.

In other words, the legal principle that, where an appeal is withdrawn, the first instance judgment becomes final and conclusive retroactively on the expiration date of the appeal period, is based on a legal interpretation established in order to ensure the legal stability of the litigation procedure and clarify the timely scope of res judicata, considering the fact that the withdrawal of appeal is a kind of litigation act. In light of such legal principle, it cannot be readily concluded that the initial date of calculating damages for delay to be paid by the Plaintiffs in substantive legal relations formed between the Plaintiffs and the Defendant is the expiration date of the appeal period. Rather, in the instant case where there are special circumstances, such as the cancellation of appeal by the opposing parties after the judgment of revocation and transmission of appeal is not a final and conclusive judgment, rather than the final and conclusive judgment, the initial date of calculating damages for delay to be paid by the Plaintiffs cannot be said to be the expiration date of the appeal period. Rather, as examined in the second below,

② As of the initial date of the judgment, the “this decision” should be deemed to have set a kind of indefinite term on the obligation to pay damages for delay to the price compensation. However, even in the case of indefinite term, the latter part of Article 387(1) of the Civil Act, “if there is an uncertain term for the performance of obligations, the obligor shall be liable for delay from the time when it becomes known that such term has arrived.” However, even in the case of indefinite term, the obligor is at the expiration of the term, but it is harsh for the obligor to take the responsibility for delay for the obligor without knowing it. Accordingly, according to the provisions of the Civil Act and legal principles, the obligor is liable for delay from the time when the obligor becomes aware of the due date. The obligation to pay damages for delay established by the final decision and the due date for the performance of the obligation to pay damages for delay arrives on October 13, 2009, which is 10 days after the expiration of the term of appeal of the judgment, the Plaintiffs were at least 10 months prior to the expiration of the term of appeal.

③ The Supreme Court Decision ordering partition of co-owned property takes effect only after the judgment becomes final and conclusive, and the effect of obligation to pay price compensation also takes effect. However, the Supreme Court Decision's withdrawal of appeal was completed upon the conclusion of the lawsuit over a period of about five years and three months from the expiration date of the appeal period. As can be seen, the Supreme Court Decision has become final and conclusive only due to external circumstances in which the plaintiffs' decision cannot be determined and controlled, on the ground that the amount of damages equivalent to the rate of 5% per annum from the day after the expiration date of the appeal period and the withdrawal date of appeal should also be included in compulsory execution, and it is remarkably unfair to allow the plaintiffs to execute it against the justice.

④ If the judgment (the first instance judgment) becomes final and conclusive due to the appellate court’s decision after the appellant’s remands without withdrawing an appeal and the appellate court’s judgment dismissing the appeal, “the date of this judgment,” which is the initial date of the appeal, shall not be the expiration date of the appeal period against the judgment, but shall be the expiration date of the appeal period against the appellate court’s judgment after remanding the case. However, the defendant group, who was the appellant, regardless of the plaintiffs’ intent, withdrawn the appeal after remanding the judgment. Accordingly, the plaintiffs, after the appellate court rendered a judgment after remanding the case, lost legitimate trust and subrogation that could have been able to complete the obligation by paying or depositing only the principal of the price compensation or the small amount of damages for delay in the final appeal at the time of the expiration date of the appeal period. Unlike the withdrawal of the lawsuit requiring the other party’s consent, if the plaintiffs interpret that the plaintiffs are liable retroactively from the expiration date of the appeal period until the expiration date of the appeal period, the plaintiffs as the respondent constitutes an unreasonable interpretation of the Civil Procedure Act or a defect in the Civil Procedure Act.

⑤ Under the premise that the parties had already formed a relationship of rights and obligations arising from tort before the judgment became final and conclusive, the Supreme Court has to determine the amount of consolation money at the time of the conclusion of fact-finding proceedings in cases where a long period has elapsed from the time of the conclusion of arguments in fact-finding proceedings to the time of the conclusion of arguments in fact-finding proceedings, and where there have been considerable changes in monetary value, etc., the amount of consolation money should be determined based on the time of the conclusion of arguments in fact-finding proceedings. Thus, unlike in principle, the Supreme Court held that the consolation money should be paid for the period after the date of the conclusion of arguments in fact-finding proceedings (see, e.g., Supreme Court en banc Decision 201Da1999, Jul. 21, 201). However, in this case where there was no change or formation of legal relations between co-owners in the lawsuit seeking compensation for damages due to the nature of the claim for partition of co-ownership of land during the dispute over which five years and three months have already occurred, the plaintiffs' assertion that the judgment should not be contrary to the principle of the judgment.

(6) In addition, the defendant should have the same time as the time of attribution of the real estate divided in kind and the time of confirmation of the claim for money, or in accordance with the plaintiffs' assertion, the defendant should pay the tax burden of the goods divided in kind during the dispute period, but rather, the claim for money payment should be reduced. However, the part ordering the division in kind in the judgment becomes final and conclusive, thereby acquiring the sole ownership of the relevant real estate by each party (it refers to the "acquisition of real estate right which does not require registration" under Article 187 of the Civil Act). On the other hand, the price compensation ordered in order to adjust the excess in kind due to the division in kind to each party, as it newly establishes an obligatory right and obligation relationship, and separate the issue of fulfillment of the obligation. Accordingly, even if the date of change in real property right is deemed the expiration date of the appeal period in the judgment, it cannot be viewed as the same as a matter of course until the date of a delay liability for the price compensation or its delay damages. Furthermore, the defendant cannot be imposed on the plaintiffs as well as the parties concerned.

B. Determination on the termination of claims

According to the above facts, the Plaintiffs deposited money in the amount of KRW 11,221 at the rate of 5% per annum from January 16, 2015 to the deposit date, with the Defendant as the principal deposit, and the amount of money for delay calculated by the rate of 5% per annum from January 16, 2015 to the deposit date. Accordingly, the Defendant’s claim against the Plaintiffs according to the judgment as the executive title was all extinguished except KRW 11,221

C. Determination on the assertion of enforcement costs

Since expenses necessary for compulsory execution are borne by the debtor and are to be reimbursed preferentially by the execution, such expenses may be collected together with the claims indicated in the execution title in the relevant compulsory execution procedure, based on the relevant execution title, which is the basis for the execution without any separate execution title. Therefore, even if the original obligation indicated in the execution title has ceased to exist due to the repayment of the execution title, the whole executory power of the relevant execution title may not be claimed (see Supreme Court Decision 2011Da105195, May 24, 2012, etc.).

In full view of each of the statements in Eul evidence Nos. 5 to 36, the defendant applied for a compulsory auction for compulsory execution (Seoul Northern District Court 2015Hu12123), and the fact that the defendant paid 5,626,490 won (4,503,00 won for court auction auction + registration tax 253,490 won + registration tax 9,000 won + service fee 426,000 won + service fee 430,000 won for request for auction + 5,000 won for stamp).

According to the above facts, unless the plaintiffs fail to pay the compulsory execution cost of KRW 5,626,490 to the defendant, it cannot be argued that the whole executory power of the judgment is excluded.

4. Conclusion

As seen so far, compulsory execution against the plaintiffs by the defendant based on the subject decision shall be dismissed only for the portion exceeding 5,637,711 won (=5,626,490 + delay delay damages + 11,221).

Therefore, the plaintiffs' claims are accepted within the scope of the above recognition, and the remaining claims shall be dismissed, without merit. Since the judgment of the court of first instance is just in conclusion, the defendant's appeal is dismissed in entirety. It is so decided as per Disposition.

Judges Lee Jin-sik (Presiding Judge)

1) In the case of an indispensable co-litigation, the appeal period is individually undertaken from the time when the original of the judgment is served on each co-litigants, but the judgment is not finalized for all co-litigants until the appeal period expires.