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1. All appeals filed by the Defendant (Counterclaim Plaintiff) against the instant principal lawsuit and counterclaim are dismissed.
2. The appeal costs.
Reasons
1. Determination as to the principal lawsuit
A. Facts 1) The Defendant filed a lawsuit against the Plaintiff claiming management expenses of KRW 6,142,500 and damages for delay thereof (Seoul Eastern District Court 2013Dada311432). 2) The Seoul Eastern District Court rendered a judgment in favor of the Defendant on July 15, 2013, which declared that “the Plaintiff shall pay KRW 6,142,50 to the Defendant and damages for delay.”
3) On November 5, 2013, the Defendant seized corporeal movables owned by the Plaintiff’s residence (Seoul Central District Court 2013No. 8005). On November 6, 2013, the Plaintiff paid KRW 2,320,000 to the Defendant as the withdrawal of the said movable auction case in order to be exempted from the execution of the said judgment on November 6, 2013. (4) In the instant case No. 2013Na23572, the Seoul East East District Court, the appellate court of the said case, sentenced the Seoul East District Court to the effect that “the first instance judgment is revoked. The Defendant’s claim is dismissed,” while the Defendant appealed, the appeal was dismissed in the Supreme Court Decision 2014Da231576, and the said appellate judgment became final and conclusive.
[Ground of recognition] Facts without dispute, entries in Gap evidence 1 to 3 (including each number), the purport of the whole pleadings
B. 1) Determination 1) The effect of enforcement based on the judgment of the provisional execution sentence is not final and conclusive, but is a condition subsequent to the cancellation or alteration of the judgment on the merits or the provisional execution sentence. In other words, even if the execution was carried out by the declaration of provisional execution, if the part or whole of the judgment on the merits becomes null and void by the previous judgment on the provisional execution sentence, it becomes final and conclusive that the execution cannot be carried out by the previous judgment on the provisional execution sentence. Therefore, if it was already received by the declaration of provisional execution, it is deemed that there exists no legal ground, and thus, it should be returned as unjust enrichment (see, e.g., Supreme Court Decision 2011Da25145, Aug. 25