A. The meaning of "when it is possible to exercise the right, which is the starting point of the statute of limitations"

(b) Whether a claim for the return of the provisional payment is made after the repayment was made by provisional execution (affirmative)

(a) The term “when it is allowed to exercise the right”, the starting point of the extinctive prescription, means that there is no legal obstacle (e.g., the due date or the non-performance of the condition precedent) in the exercise of the right, and the prescription does not run because the right holder was unable to exercise his right due to a de facto disability, such as a lack of personal circumstances or legal knowledge, the site of the existence of right, or the absence of the debtor, and the claim whose due date has become due

(b)The effect of performance by provisional execution is not final and conclusive, and it takes place on the condition that the provisional execution declaration or the judgment on the merits be cancelled at the appellate court, and such performance of a claim is a compulsory execution issued by the judgment on the provisional execution declaration book or by the judgment on the provisional execution declaration book, and as such, it is justified that the appellate court ordered the return of the provisional payment under the premise that it is not a voluntary performance by agreement of the claim as expressed in the judgment on the first instance court on the merits of the judgment on the provisional execution book

A. Article 166 of the Civil Procedure Act

Supreme Court Decision 65Da775 delivered on June 22, 1965, Supreme Court Decision 63Da252 Delivered on July 11, 1963

Plaintiff

Defendant

Seoul Civil District Court Decision 80Na238 delivered on October 10, 1980

The appeal is dismissed.

The costs of appeal shall be borne by the plaintiff.

We examine the Plaintiff’s ground of appeal.

1. The statute of limitations begins from the time when a right (claim) can be exercised. Since "the time when the above right can be exercised" refers to the absence of the due date in exercising the right, i.e., the obstacle inherent in the nature of the right, such as the right under condition precedent which has not been fulfilled, i.e., the time when the right is not exercised in such a state, i., when the right is not exercised, i.e., when the right holder's personal or legal knowledge is not exercised, i., when the right is not exercised, i.e., when the right is not exercised, i., when the right is not exercised, i., when the right is not exercised, i.e., the time when the right has become due., when the right has become due, i., when the right has become due and its due date has become due, i.e., when the right has become due, i., the right to claim the payment of the above claim against the defendant.

In addition, even if the non-party company's claim for the whole amount of monthly rent at the store held by the court below against the defendant is clear as determined by the court below, and even if the non-party company holds a claim for damages equivalent to the rent or a claim for return of unjust enrichment on the ground that it occupies the store held without the authority of the defendant against the defendant, the plaintiff in the record does not have any evidence to deem that the plaintiff was ordered to seize the above claim, nor did it claim the payment of money based on the above claim until the court below reached the court below, and such claim has no claim for payment of money based on the above claim, it shall not be deemed that the above claim for monthly rent is included in the argument for the above monthly rent claim. Therefore, the plaintiff cannot be admitted to criticize the court below which recognized the completion of

2. The effect of repayment due to provisional execution is not a conclusive but a condition that the provisional execution declaration or the judgment on the merits be cancelled at the appellate court (see, e.g., Supreme Court Decision 63Da252, Jul. 11, 1963). The repayment of this claim is either a compulsory execution by the judgment on the provisional execution declaration book, or a voluntary or different payment is made with respect to the claim of the judgment on the provisional execution declaration book, and according to the Eul evidence 4 (Receipt), it is recognized that the defendant paid 560,000 won to the plaintiff on March 19, 1980, and it is recognized that the delivery of the above money was not executed by the compulsory execution procedure, but it is not a voluntary payment by the agreement regardless of the dispute of this case and that the defendant reached the appeal of this case, it is justifiable to order the court below to return the provisional payment article, and it is not erroneous in the misapprehension of legal principles as to voluntary payment or an order to return the claim under the premise that the above claim was extinguished due to the dissenting opinion.

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating judges.

Justices Kang Young-young (Presiding Justice)