[1] Whether the grounds for failure or invalidation of the claim that occurred prior to the issuance of the final and conclusive payment order can be asserted in a demurrer suit against the payment order (affirmative)

[2] Whether Article 3(2) of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings applies in a case where a claim objection is partially accepted in a lawsuit of demurrer against a payment order (affirmative), and whether in a case of a lawsuit of demurrer against a combined payment order, whether it is reasonable to dispute over the existence or scope of an obligation to perform (affirmative)

[3] The legal provision applicable to the rate of delay damages in a lawsuit of demurrer against payment order to which the former Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings, which was declared unconstitutional

[1] Article 505(2) of the former Civil Procedure Act (amended by Act No. 6626 of Jan. 26, 2002) provides that an objection against a final judgment may be raised only when the cause has arisen after the closing of argument. However, Article 521(2) of the same Act provides that an objection against a claim against a payment order does not comply with the restriction under Article 505 of the same Act. Thus, in a lawsuit seeking objection against a payment order, not only the grounds for extinguishing the claim after the issuance of the payment order, or preventing the exercise of the claim, but also the failure or invalidity of the claim before the issuance of the payment order, etc. This becomes a ground for objection. Meanwhile, Article 474 of the current Civil Procedure Act provides that a payment order finalized has the same effect as the final judgment. However, unlike Article 44(2) of the former Civil Procedure Act, Article 521(2) of the same Act provides that the grounds for objection against a payment order established before the issuance of the final judgment shall not apply to the claim for res judicata under the current Civil Procedure Act.

[2] Since res judicata is not recognized on a payment order, in a lawsuit of objection raised for the purpose of excluding executive force on the payment order, where a claim objection is partially accepted due to the failure or extinguishment of part of the claim that occurred prior to the issuance of the payment order, etc., the existence or scope of the obligation to perform the obligation to claim before the issuance of the payment order constitutes a case where a dispute over the existence or scope of the obligation to perform the obligation to claim prior to the issuance of the judgment of facts, and thus, Article 3(1) of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings cannot be applied within the above period. In addition, in a lawsuit of objection against a claim for a payment order joined, the above legal principles shall be applied to each of the subject-matter of the claims joined in the payment order, so it shall be determined separately by each claim.

[3] The Constitutional Court Order 2002Hun-Ga15 delivered on April 24, 2003, which rendered a decision of unconstitutionality as to Article 3(1) of the former Act on Special Cases Concerning Expedition, etc. of Legal Proceedings (amended by Act No. 6868 of May 10, 2003) has become null and void. The effect of the decision of unconstitutionality of the Constitutional Court is to extend to the general cases instituted after the decision of unconstitutionality, unless it is inevitable for maintaining legal stability or protecting the trust of the parties. If a claim is partially accepted due to the reasons arising before the payment order as the res judicata effect is not recognized, it shall be reviewed again as to the application of interest rate under the Act on Special Cases Concerning Promotion, etc. of Legal Proceedings (amended by Act No. 6868 of May 10, 2003). In light of the above, where a lawsuit is filed to exclude the executory power payment order, the remaining scope of the executory power remains null and void (amended by Act No. 1683808 of May 168, 68, 68, 608, May 168).

[1] Articles 505(2) and 521(2) (see current Article 44(2) of the former Civil Procedure Act (amended by Act No. 6626, Jan. 26, 2002); Article 474 of the Civil Procedure Act; Articles 44(2) and 58(3) of the Civil Execution Act / [2] Article 3 of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings; Articles 44(2) and 58(3) of the Civil Execution Act / [3] Article 47 of the Constitutional Court Act; Article 3(1) of the former Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings (amended by Act No. 6868, May 10, 2003); Article 379 of the Civil Act; Article 379 of the Civil Act; Article 44(2) and Article 58(3) of the Civil Execution Act

[1] Supreme Court Decision 2004Da11346 delivered on May 14, 2004 / [3] Supreme Court Decision 92Da12377 delivered on January 15, 1993 (Gong1993Sang, 698)

Plaintiff Union (Attorney Lee Jong-he et al., Counsel for the plaintiff-appellant)

Defendant (Law Firm LLC et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2005Na106724 decided October 11, 2006

The part of the judgment of the court below regarding the above part is reversed, and the plaintiff's appeal as to the above part is dismissed. All of the plaintiff's appeal and the defendant's remaining appeals are dismissed. The total costs of the lawsuit are ten minutes, and the total costs of the lawsuit shall be borne by the plaintiff and the remainder by the defendant respectively. The plaintiff's appeal shall be dismissed. The plaintiff's appeal and the remainder by the defendant's appeal shall be dismissed. The total costs of the lawsuit shall be 10 minutes, and the total costs of the lawsuit shall be borne by the plaintiff and the remainder by the defendant, respectively.

Each ground of appeal is examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Judgment on the Plaintiff’s grounds of appeal

A. As to grounds of appeal Nos. 1 and 2

원심은 그 채용 증거들을 종합하여 그 판시와 같은 사실을 인정한 다음, 원고는 피고 관리규약에 따르기로 한 약정에 기하여 원고 소유의 미입점 점포에 부과된 일반관리비 및 공용관리비에 해당하는 원심 인정의 관리비를 지급할 의무가 있고, 3자 협의체 회의에서의 약정과 원고의 2000. 7. 21.자 임시총회 결의, 원고의 수분양자에 대한 점포 임대 알선의무, 관리비 납부 현황 등에 비추어 인정되는 원·피고 사이의 약정에 따라 제3자 소유의 이 사건 임대위임 점포와 스낵층 미입점 점포에 관하여 ○○상가의 준공검사일까지 발생한 관리비를 지급할 의무가 있다고 판단하였다.

Examining the reasoning of the judgment below in light of relevant evidence and the records, the fact-finding and judgment of the court below are all justified, and there is no error in the misapprehension of the rules of evidence as to the defendant's right to claim management expenses or the details of management expenses, the validity of the resolution of special general meeting on July 21, 200, or the misapprehension of the legal principles, as otherwise alleged in the ground of appeal. The ground of appeal

B. Ground of appeal No. 3

Article 505 (2) of the former Civil Procedure Act (amended by Act No. 4201 of Jan. 13, 1990 and amended by Act No. 6626 of Jan. 26, 2002; hereinafter the "former Civil Procedure Act") which applies to the first payment order of this case provides that an objection against a final and conclusive judgment may be raised only when the cause has arisen after the closing of argument. However, Article 521 (2) of the same Act provides that an objection against a claim against a payment order of this case does not comply with the restriction of Article 505 of the current Civil Procedure Act. Thus, in a lawsuit seeking objection against a payment order of this case, not only the grounds for extinguishing the claim after the issuance of the payment order, or preventing the exercise of the claim prior to the issuance of the payment order of the payment order, but also the grounds for objection against the final and conclusive judgment of this case cannot be deemed to have been raised (see Supreme Court Decision 2004Da11346, May 14, 2004).

Therefore, even if the president of the Plaintiff’s former association established each of the instant payments orders contrary to the substantive legal relationship for the Defendant’s interest and committed an act contrary to the good faith principle, unlike the objection raised against the final judgment, such reason can only be an objection to the claim objection against the payment order without res judicata, which does not constitute an independent objection, and goes against the substantive legal relationship.

Although the court below's explanation of this part of its reasoning is somewhat inappropriate, it is justified in its conclusion that rejected the plaintiff's assertion, and there is no error of law that affected the conclusion of the judgment. The ground of appeal on this point is without merit.

2. Judgment on the Defendant’s grounds of appeal

A. As to the plaintiff's liability to pay management expenses even after completion inspection

원심은 그 채용 증거를 종합하여 그 판시와 같은 사실을 인정한 다음, 3자 협의체 회의에서의 약정 및 원고의 위 임시총회 결의 등에 비추어 인정되는 원·피고 사이의 약정에 따라, 원고는 준공검사일까지 이 사건 스낵층 미입점 점포에 관한 관리비를 지급할 의무가 있으나, 원고가 3자 협의체 회의에서 이 사건 스낵층 미입점 점포 문제 즉, 분양이 되었으나 분양된 구좌만으로는 영업하기에 적합하지 않아 수분양자들이 해당 점포에 입점하지 아니한 문제를 전적으로 책임지고 해결하겠다고 한 것만으로는 원고가 ○○상가의 준공검사 이후에도 이 사건 스낵층 미입점 점포에 대한 관리비 납무의무를 부담하기로 약정한 것이라고 볼 수 없고, 또한 분양계약이 원·피고 사이의 법률관계에 직접 적용되어 원고가 피고에 대한 관계에서 제3자 소유인 위 점포에 대한 관리비를 납부할 의무를 부담한다고 볼 수 없다고 판단한 다음, 원고에게 위 스낵층 미입점 점포에 관한 준공검사 이후의 관리비 지급의무가 있다는 피고의 주장을 배척하였다.

Examining the reasoning of the judgment below in light of relevant evidence and the records, we affirm the above fact-finding and judgment of the court below as just, and there is no violation of the rules of evidence or misapprehension of legal principles as to the agreement of the third party consultative body, contents and validity of the sales contract, and there is no error in the misapprehension of the rules of evidence or the rules of legal principles as to the contents and validity of the sales contract. It is evident that the above judgment of the court below is the purport of rejecting the defendant's conjunctive assertion that the plaintiff has the obligation to pay electricity after the completion inspection according to the resolution of the board of directors of February

B. As to the illegality of the application of damages for delay

(1) The interest rate stipulated in Article 3(1) of the Act on Special Cases Concerning Expedition, etc. of Legal Proceedings concerning statutory interest rates which serve as the basis for calculating the amount of damages due to the nonperformance of monetary obligations may be applied from the date following the date on which the complaint demanding the performance of monetary obligations or a document corresponding thereto was served on the obligor. However, if it is deemed reasonable to dispute over the existence or scope of the obligation until the judgment of fact-finding court declaring the existence of the obligation is rendered pursuant to Article 3(2) of the same Act, the payment order shall not be applied within a reasonable period. Since res judicata is not recognized in the payment order, if the claim is partially accepted due to the grounds such as the non-existence or extinguishment of part of the claim arising before the issuance of the payment order in the lawsuit demanding the exclusion of the enforcement of the payment order, it shall be deemed that the claim has a considerable dispute over the existence or scope of the obligation to perform the obligation before the payment order was issued until the judgment of the court of fact-finding, and thus, the interest rate stipulated in the above Promotion Act cannot be applied within the above period

In addition, in a lawsuit of objection against a claim for a payment order for which several claims are combined, the above legal principles shall apply to each of the items of lawsuit joined in the payment order. As such, whether it is reasonable to dispute over the existence or scope of performance obligations should be separately determined by each claim. It is reasonable to view that the lawsuit for the claim for management expenses in this case covers one of the items of lawsuit for each store that is subject to the claim for management expenses

Meanwhile, as Constitutional Court Order 2002Hun-Ga15 delivered on April 24, 2003 (amended by Act No. 6868 of May 10, 2003; hereinafter "former Promotion Act"), Article 3 (1) of the former Act on Special Cases Concerning Encouragement, etc. of Lawsuit (amended by Act No. 6868 of May 10, 2003; hereinafter "former Promotion Act") is declared unconstitutional, the above provision becomes invalid. The effect of the decision of unconstitutionality of the Constitutional Court is not inevitable for maintaining legal stability or protecting the trust of the parties, but it also extends to the general case that was instituted after the decision of unconstitutionality (see Supreme Court Decision 92Da12377, Jan. 15, 1993, etc.). In light of the above, if a claim for the payment order was partially accepted on the grounds that res judicata effect had not been recognized, the scope of the action for exclusion of the enforcement force of the amended Act can be reviewed, and the remaining scope of the action for exclusion of the Act.

(2) 원심은 그 채용 증거를 종합하여 그 판시와 같은 사실을 인정한 다음, 이 사건 제1, 2차 관리비채권에 포함된 이 사건 스낵층 미입점 점포에 관한 2001. 1.분 이후의 관리비채권은 그 각 지급명령 이전부터 불성립하였다고 보아 그 부분 관리비에 관하여 원고의 지급의무를 부정하였다. 따라서 이 사건에서 원심이 인용한 원고의 채무 중 이 사건 제1차 관리비에 포함된 이 사건 스낵층 미입점 점포의 관리비는 지급명령에 비하여 그 금액이 감액되므로 원심판결 선고일까지 원고가 그 이행의무의 존부나 범위에 관하여 항쟁함이 상당하다고 인정할 수 있지만, 그와 소송물을 달리하는 제1, 2차 관리비 중 원고 소유 점포 및 임대위임 점포의 관리비에 관하여는 원심이 지급명령과 동일하게 피고의 관리비청구가 이유 있다고 판단한 이상 다른 특별한 사정이 없는 한 원고의 이 부분에 관한 항쟁이 상당하다고 볼 수 없다.

(3) Nevertheless, among the management expenses acknowledged by the court below, the plaintiff's objection is reasonable as to the existence or scope of the duty of performance as to the period from June 1, 2003 to October 11, 2006, which is the date of the decision of the court below, since the service of the original payment order for the management expenses of the plaintiff's store and the rental delegation store among the management expenses recognized by the court below, and the plaintiff did not apply the interest rate under the above revised promotion Act, which is erroneous in the misunderstanding of legal principles, which affected the conclusion of the judgment. The ground of appeal on this point is with merit within this scope.

3. Conclusion

Therefore, the part of the judgment of the court below which rejected compulsory execution for the portion equivalent to 390,342,460 won per annum from June 1, 2003 to October 11, 2006 among the damages for delay from June 1, 2003 to the management expenses of the Plaintiff’s store and the leased store, and damages for delay from June 1, 2003 to October 11, 2006 to the part equivalent to 20% per annum, among the damages for delay from June 1, 2003 to the damages for delay owned by the Plaintiff’s store from June 1, 2003 to October 11, 206, is reversed. This part is sufficient for the court to directly judge this part. Accordingly, the Plaintiff’s appeal corresponding to the reversed part is dismissed, and all of the Plaintiff’s appeal and the remainder of the Defendant’s appeal are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Young-ran (Presiding Justice)