1. Of the judgment of the court of first instance, the part against the defendant ordering payment in excess of the amount ordered below.

1. Facts of recognition;

A. In the case of the construction cost claim filed by the Defendant Company against the Plaintiff Company (the District Court Decision 2009Da35439) on February 10, 2010, the said court rendered a judgment of provisional execution ordering that “the Plaintiff Company shall pay to the Defendant Company the amount of KRW 31,607,00 and the interest calculated at the rate of 6% per annum from April 21, 2009 to the date of full payment.”

B. On July 14, 2011, the appellate court rendered a judgment that “the first instance judgment is revoked, and the claim of the Defendant Company is dismissed,” and the above appellate judgment became final and conclusive without appeal.”

C. Meanwhile, based on the judgment of the first instance court on May 27, 2010, the Defendant Company collected KRW 33,461,854 from the bank account of the Plaintiff Company by provisional execution.

[Ground of recognition] Unsatisfy, entry of Gap evidence 1 to 5 (including virtual numbers; hereinafter the same shall apply), the purport of the whole pleadings

2. Determination

A. According to the above facts of recognition as to the cause of the claim, since a provisional execution sentence of the above judgment of the court of first instance became null and void due to the above judgment of the court of appeal, the defendant company is obligated to pay the plaintiff company the provisional payment amounting to 33,461,854 won and the legal interest amount after the collection date.

B. As to the assertion and defense of the Defendant Company, the Defendant Company asserted that it offsets the Plaintiff Company’s claim against the instant claim on the ground that B received the claim for construction cost against the Plaintiff Company.

(1) The fact of recognition ① Nonparty E, who operated C and D, failed to repay the obligations of promissory notes, etc. issued to F (the current representative director of the Plaintiff Company), making the said C and D’s financial status worse, transfer the rights to manage and operate the said obligations to F, with the means of repaying the said obligations, to F on October 31, 2008, and became responsible for the establishment of the Plaintiff Company and the representative director. The above C and D on November 26, 2008.