[1] In a case where a creditor receives a part of the performance that was made before the closing of pleadings before the final and conclusive judgment and becomes effective as a result of the receipt of the performance after the closing of pleadings, whether the claim may constitute grounds for objection (affirmative)

[2] The elements for a deposit for partial performance of an obligation to be effective by a partial performance

[3] Where the execution of a final and conclusive judgment is not allowed as an abuse of rights when the contents of the final and conclusive judgment are contrary to substantive legal relations

[4] Whether a set-off can be recognized without confirming the creditor's separate intent of set-off, which is distinguished from the creditor's other intent (negative)

[1] The grounds for raising an objection against the final and conclusive judgment should arise after the closure of pleadings in the final and conclusive judgment. However, in a case where part of the performance performed prior to the closure of pleadings in the final and conclusive judgment takes effect after the closure of pleadings, the creditor may raise an objection within the said extent.

[2] In order to be effective a deposit for repayment, there is a need to provide for the full repayment of the obligation and deposit for the full amount of the obligation, and the deposit for part other than the full amount of the obligation does not take effect as to that part. However, if the obligee expresses his/her intent to appropriate the deposit for part of the obligation and receives it, the deposit shall be appropriated for the partial repayment of the obligation, and if so, the declaration of intention to make the deposit shall not be explicitly required.

[3] In a case where the contents of a final and conclusive judgment are contrary to substantive legal relationship, the execution is not allowed as an abuse of rights in a case where the execution of the final and conclusive judgment is clearly unfair and it is clearly contrary to the definition to allow the other party to receive the execution of the final and conclusive judgment, in full view of all the circumstances such as the nature and contents of the right which can be executed by the final and conclusive judgment, the circumstances leading to the formation of the judgment, the execution of the final and conclusive judgment to the execution

[4] The principle of pleading applies to the assertion and admission of the principal facts that are the elements of judgment on the legal effect of the creation, alteration, and extinguishment of a right in the civil litigation procedure. Thus, a set-off should be separately declared by an obligee who holds a claim on a set-off (Article 493(1) of the Civil Act). In principle, the issue of whether to express such intent is left to the obligee’s freedom. Thus, even if it is implicitly possible, it cannot be recognized without confirming a separate set-off intention separate from other intent.

[1] Article 44 of the Civil Execution Act / [2] Articles 105 and 487 of the Civil Act / [3] Article 2 of the Civil Act, Article 24 of the Civil Execution Act / [4] Article 203 of the Civil Procedure Act, Article 493 (1) of the Civil Act

[2] Supreme Court Decision 96Da14616 delivered on July 26, 1996 (Gong1996Ha, 2606) Supreme Court Decision 97Da37784 delivered on November 11, 1997 (Gong1997Ha, 3781) / [3] Supreme Court Decision 99Da3289 delivered on November 13, 2001 (Gong202Sang, 29) / [4] Supreme Court Decision 2003Da57697 delivered on May 14, 2004

Plaintiff (Attorney Lee Jong-sung, Counsel for the plaintiff-appellant)

An intervenor;

Defendant

Seoul Central District Court Decision 2007Na33322 Decided May 13, 2008

The part of the judgment of the court below against the defendant, excluding the part corresponding to the amount repaid by deposit of KRW 5,00,000 with the Seoul District Court Decision 2002Da3989, Oct. 17, 2002, is reversed, and this part of the case is remanded to the Panel Division of the Seoul Central District Court. The plaintiff's appeal and the remainder of the defendant's appeal are all dismissed.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Fact-finding and judgment of the court below

The court below, based on its evidence, found that Nonparty 1 and Nonparty 2 were injured by the traffic accident around April 12, 197 by the defendant 1 and his husband 5, and that the plaintiff 1 and the plaintiff 2, who was the attorney-at-law, filed a lawsuit claiming damages against the plaintiff 163411 by the Seoul District Court, 98. On August 12, 1998, "the plaintiff 22 million won, 25 million won, and 10 million won to the defendant 1 and 2, and the defendant 99. The plaintiff 1 and the defendant 2 notified the defendant 1 that the plaintiff 2 would be entitled to the above 9. The plaintiff 1 and the plaintiff 2 would be entitled to the above 9. The plaintiff 2's damages claim against the plaintiff 1 and the defendant 2, who was entitled to the above 9. The plaintiff 1 and the plaintiff 2's 9. The plaintiff 2 notified the defendant 1 that it would receive the above 9.

Based on such factual basis, the court below rejected the Plaintiff’s claim on the ground that the Plaintiff’s obligation under the above final judgment was null and void since the Plaintiff paid KRW 25 million to the Plaintiff’s Intervenor, who was the Defendant’s attorney on September 3, 1999, and paid KRW 5,164,451 on October 17, 2002, and the enforcement based on the above final judgment, which is contrary to substantive relations, constitutes abuse of rights, and the Plaintiff’s payment of KRW 25 million to the Plaintiff’s Intervenor on September 3, 1999, constitutes abuse of rights. The court below rejected the Plaintiff’s claim on the ground that the payment was made prior to the closing of argument in the final judgment, and the payment deposit on October 17, 2002 is null and void. Meanwhile, it is hard to view that the Defendant’s compulsory execution is an abuse of rights as it constitutes an abuse of rights.

However, the court below held that since the plaintiff's assistant intervenor's payment of KRW 25 million to the plaintiff's assistant intervenor on September 3, 1999 is also effective to the defendant, since it is possible to receive reimbursement for the delegated case as attorney, the plaintiff's assistant intervenor's payment of KRW 25 million shall also be effective to the defendant. Even if the legal ground for payment has been cancelled, the plaintiff's claim for return of unjust enrichment equivalent to KRW 25 million against the defendant was extinguished, and the plaintiff's claim that the above claim for return of unjust enrichment was extinguished with the above claim for return of 25 million won includes the purport of offsetting the above claim for return of unjust enrichment and the above claim for return of unjust enrichment of KRW 25 million to the defendant on June 8, 2007, the court below decided that the above claim for return of unjust enrichment of KRW 25 million and the principal and interest of KRW 54,836,524 won until it reached the maturity of payment, and that the above claim should be offset against the defendant's remaining amount of KRW 29836,2426.26.

2. As to the Plaintiff’s ground of appeal Nos. 1 and 2

A. As to the assertion of repayment

The grounds for raising an objection against a final and conclusive judgment shall accrue after the closure of pleadings in the final and conclusive judgment: Provided, That in cases where an obligee receives a part of performance performed prior to the closure of pleadings in the final and conclusive judgment and the repayment takes effect after the closure of pleadings, it shall be deemed that such objection may constitute a

Meanwhile, in order for deposit to be effective, the provision of performance to the whole amount of the obligation and deposit to the whole amount of the obligation does not take effect as to the part of the obligation. However, if the creditor expresses his/her intent to appropriate the deposit to part of the obligation, and receives it, the deposit money shall be appropriated for the part of the obligation, and in such case, the expression of intent to make the deposit shall not be explicitly required (see, e.g., Supreme Court Decisions 96Da14616, Jul. 26, 1996; 97Da37784, Nov. 11, 1997).

In light of these legal principles, the court below's decision is just and acceptable with respect to the part of KRW 25 million, which the plaintiff paid to the plaintiff's supplementary intervenor on September 3, 1999, which is KRW 25 million, which cannot be a legitimate ground for objection. However, it is hard to accept for the following reasons that the court below's decision did not recognize the effect of partial repayment of KRW 5 million, out of KRW 25 million paid to the plaintiff's supplementary intervenor on September 3, 1999 and KRW 5,164,451, which was paid to the plaintiff's supplementary intervenor on October 17, 2002.

First, according to evidence, etc. adopted by the court below following legitimate evidence investigation, the plaintiff's assistant intervenor filed a lawsuit against the defendant and the non-party 3 seeking the payment of the contingent fees of the above claim for damages (Seoul Central District Court Decision 2003Da47094) after the above claim for damages, and the plaintiff's assistant intervenor received KRW 25 million from the plaintiff on September 3, 1999 in calculating the contingent fees to the defendant, and excluded the plaintiff's assistant intervenor received KRW 5 million from his own fees. As a result, the plaintiff's winning judgment was rendered only for the remaining part except the above five million won against the defendant. Thus, if the defendant received the above accounts of the plaintiff's assistant in the above claim for contingent fees, it is reasonable to view that the defendant received them as part of the plaintiff's compensation for damages. Thus, the court below should examine whether the defendant received the above calculation of the plaintiff's contingent fees in the above claim for contingent fees without objection.

Next, according to the evidence, etc. adopted by the court below through legitimate examination of evidence, the defendant appears to have received KRW 5,164,451 from the plaintiff on October 17, 2002. Although the above deposit is part of the obligation, if the defendant expressed his/her intention of reservation that the payment should be appropriated for part of the obligation, it shall be appropriated for part of the obligation. Therefore, the court below should have examined when and how the defendant received the above payment from the defendant, and whether the defendant expressed his/her explicit intent that the payment should be appropriated for part of the obligation at the time of receipt. Further, as seen above, the defendant continued to dispute the plaintiff's failure to receive KRW 25 million from the plaintiff's supplementary participant on September 3, 199, on the premise that the above claim for damages had not been paid to the defendant, at least the above KRW 25 million, the defendant ordered the defendant to pay the payment of the deposit to the defendant on the premise that the above claim for compensation had not been paid to the defendant.

Therefore, it is reasonable to view that the Plaintiff’s deposit money of KRW 5 million out of KRW 25 million paid by the Plaintiff on September 3, 1999 and the Plaintiff’s deposit money of October 17, 2002 was appropriated for the discharge of part of the obligation pursuant to the above final judgment. The lower court’s rejection of the Plaintiff’s assertion on these parts is erroneous by misapprehending the legal principles on partial repayment and partial deposit of payment, thereby adversely affecting the conclusion of the judgment. Thus, the Plaintiff’s ground of appeal on the repayment of the above final judgment amount is with merit only for the above five million and the above deposit money of KRW 5 million.

B. Regarding abuse of rights assertion

In a case where the contents of a final and conclusive judgment are contrary to substantive legal relationship, the execution of the final and conclusive judgment is not allowed as an abuse of rights in a case where it is deemed that the execution of the final and conclusive judgment is considerably unfair and it is obviously unreasonable to allow the other party to receive the execution of the final and conclusive judgment, and it is not permitted as an abuse of rights (see Supreme Court Decision 9Da32899 delivered on November 13, 2001, etc.).

In light of the above legal principles, the court below's rejection of the plaintiff's abuse of rights on the ground that the plaintiff did not submit the defendant's certificate of the personal seal impression and the non-party 1 did not have any money actually paid to the defendant due to the non-party 1's arrival after the defendant's death is just and acceptable, and there is no error of law such as misunderstanding of legal principles

3. Plaintiff’s ground of appeal No. 3 and Defendant’s ground of appeal

In the civil procedure, the principle of pleading applies to the assertion and admission of the principal facts that are the requirements for judgment on the legal effect of the creation, alteration, or extinguishment of a right (see Supreme Court Decision 2003Da57697, May 14, 2004, etc.). The offset is a separate declaration of intent by the creditor holding the claim on the offset (Article 493(1) of the Civil Act). The declaration of intent is in principle attributable to the creditor's freedom. Thus, even if the declaration of intent of offset is implicitly possible, it shall not be recognized without confirming the separate intention of offset, which is distinguishable from other intentions.

However, even according to the judgment of the court below, the plaintiff did not explicitly assert the claim for return of unjust enrichment on the premise of set-off or set-off, and the plaintiff's assertion is merely the purport that the obligation under the above final judgment has been extinguished by repayment. Thus, even if the plaintiff had a claim in a set-off prior to the closing of argument in the final judgment, it is difficult to view that set-off is naturally included in the assertion that the obligation under the final judgment has been extinguished by payment after the closing of argument, and

Therefore, since the plaintiff cannot be deemed to have asserted as to set-off and its requirement facts, the court below erred in the misapprehension of the principle of pleading. Thus, the defendant's ground of appeal pointing this out is with merit without examining the remaining grounds of appeal. The plaintiff's ground of appeal pointing this out is without merit.

Ultimately, compulsory execution based on the above final judgment shall be dismissed only on the part exceeding the remaining amount of money paid by the Plaintiff to the Plaintiff’s Intervenor on September 3, 1999 and the Plaintiff’s deposited money on October 17, 2002. Since the lower court recognized the scope of refusing compulsory execution by deeming that any more portion was repaid, it shall be deemed that the lower court’s judgment did not escape the part of the judgment against the Defendant, excluding the above five million won and the part corresponding to the money repaid with the above deposited money.

4. Conclusion

Therefore, the part of the judgment of the court below against the defendant, excluding the above 5,00,000 won and the part corresponding to the above deposited money, shall be reversed, and this part of the case shall be remanded to the court below for a new trial and determination. The plaintiff's appeal and the defendant's remaining appeals are all dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Young-chul (Presiding Justice)