A request for return of payment due to a declaration of provisional execution under Article 201(2) of the Civil Procedure Act and necessary pleadings

Any request for the return, etc. of goods paid due to the declaration of provisional execution shall be made by pleadings according to the lawsuit.

Article 201(2) of the Civil Procedure Act

Plaintiff

Defendant

Seoul District Court Decision 67Na650 delivered on December 7, 1967, 200

The part ordering the return of payment due to the declaration of provisional execution among the original judgment shall be reversed, and this part shall be remanded to the Seoul Civil Procedure District Court Panel Division.

The remainder of appeal except for the part reversed in paragraph (1) shall be dismissed.

The ground of appeal No. 1 by the Plaintiff’s attorney is examined.

According to the provisions of Article 157 (2) of the Civil Procedure Act, if the last day of a period falls under Sundays or any other holiday, the period shall expire on the following day. According to the records, since the original copy of the judgment of the first instance is served on June 17, 1967, the period of appeal shall expire on July 1 of the same year (Article 124 of the Presidential Decree of June 4, 1949). According to the public holidays of the government offices, the period of appeal shall expire on July 1 of the same year (Article 124 of the Presidential Decree of June 4, 1949), it includes a designated date from time to time on the public holidays of the government offices, and according to the general seal of the Minister of Government Administration on June 26, 1967, it can be known that it was designated as a temporary holiday on July 1, 1967, and it is obvious that the period of appeal of the defendant shall expire on the same third day of the defendant's appeal.

We examine the second ground for appeal.

According to the facts established by the court below, at around 12, 1959, the defendant's father non-party 1 purchased the land in this case from non-party 2's father non-party 3, and cultivated the defendant for 8 years since the purchase of the land in this case, and the plaintiff was entrusted with the land in this case from non-party 2 to the same non-party with the focus of conducting litigation against the defendant, and even in light of the records, since there is no error in the process of the above fact-finding, the registration of this case's land in this case's name shall be null and void pursuant to Article 7 of the Trust Act, and since the registration of the plaintiff's name may be asserted as null and void in this case's non-party 1's non-party

The ground of appeal No. 3 is examined.

A request for the return, etc. of a payment due to a declaration of provisional execution as stipulated in Article 201(2) of the Civil Procedure Act shall be made by the court in accordance with the lawsuit. According to the records, the court below ordered the return of the above payment to the plaintiff without pleading of the claim for the return of the payment due to a declaration of provisional execution by the defendant's attorney is erroneous in the misapprehension of legal principles as to

Therefore, the part ordering the return of the above payment shall be reversed, and the remainder shall be dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Judge Do-dong (Presiding Judge) of the Supreme Court