Whether the statutory interest rate in commercial law can be applied to damages for delay in the duty to restore due to the invalidation of a declaration of provisional execution (negative)

Since the duty to restore following the invalidation of a declaration of provisional execution cannot be deemed as a obligation arising from a commercial activity or an obligation corresponding thereto, the damages for delay shall be governed by the statutory interest rate prescribed in the Civil Act, and the statutory interest rate prescribed in the Commercial Act shall not apply.

Article 215(2) of the Civil Procedure Act, Article 379 of the Civil Act, Article 54 of the Commercial Act

Supreme Court Decision 79Da1203 Delivered on September 11, 1979

Seoul Guarantee Insurance Co., Ltd. (Attorney Choi Sung-sung, Counsel for defendant-appellant)

rink real estate trust Co., Ltd. (Law Firm Sejong, Attorneys Lee Ho-ro et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2002Na62724 delivered on September 5, 2003

The part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the Seoul High Court.

The execution based on a judgment with a declaration of provisional execution is not conclusive, but is based on the condition that the sentence of provisional execution or the judgment on the merits will not be changed in the appellate court, and if the judgment on the merits is changed later in the appellate court, the provisional execution obligee shall return the goods received by the declaration of provisional execution, and shall bear the obligation to compensate for the damages incurred by the provisional execution or for the exemption therefrom. However, this obligation to restore and compensate for damages arising from the provisional execution, unless there are special circumstances to the contrary, the provisional execution obligee shall pay the money paid and the damages incurred by the provisional execution at the statutory rate from the date of payment of the money paid and the money paid, unless there are special circumstances to the contrary. However, the duty to restore and compensate for damages arising from the invalidation of the provisional execution shall be based on the statutory interest rate prescribed in the Civil Act, and the legal interest rate prescribed in the Commercial Act shall not apply to such damages for delay.

According to the reasoning of the judgment of the court below, with respect to the plaintiff's claim seeking payment of damages for delay at the statutory rate of 6% per annum under the Commercial Act as to the provisional payment which the plaintiff paid to the defendant upon the declaration of provisional execution on the ground that the judgment on the merits of the provisional execution was revoked in the appellate court, the court below erred by misapprehending the legal principles as to the scope of application of the statutory interest rate in commercial affairs, thereby adversely affecting the conclusion of the judgment, on the ground that the plaintiff's provisional execution was revoked on the premise that the provisional payment was paid to the defendant according to the declaration of provisional execution. In the event that the insurance contract was revoked on the premise that the plaintiff's provisional execution was an insurance money, the defendant shall return the insurance money received as a restoration obligation, and even if it is not directly incurred by an insurance contract which is a commercial activity, it can be deemed that the return of the provisional payment constitutes an identical or modified right.

Therefore, the part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices.

Justices Zwon-won (Presiding Justice)