Where money has been paid by a declaration of provisional execution but the part or whole of the judgment on the merits has ceased to exist later in the appellate court, whether the creditor of provisional execution should pay the provisional payment and damages for delay after the date of payment (affirmative)

Article 215 of the Civil Procedure Act, Article 379 of the Civil Act

Supreme Court Decision 79Da1203 Decided September 11, 1979 (Gong2011Ha, 1928) Supreme Court Decision 2003Da52944 Decided August 27, 2004 (Gong2004Sang, 549)

Seocho punishment Co., Ltd. (Attorney Jeon Soo-hoon et al., Counsel for defendant-appellee)

Defendant (Law Firm Duo, Attorneys Kim Jung-chul et al., Counsel for the defendant-appellant)

Daegu District Court Decision 2011Na12413 Decided October 27, 2011

The appeal is dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

1. As to the grounds of appeal Nos. 1 through 3

The effect of enforcement based on the judgment of the sentence of provisional execution is not final and conclusive, but is the condition subsequent to the appellate court to cancel or change the judgment on the merits or the sentence of provisional execution. In other words, even if a provisional execution was executed by a sentence of provisional execution, it shall be concluded that if part or whole of the judgment on the merits becomes null and void by the previous judgment on the sentence of provisional execution (see Supreme Court Decision 201Da25145, Aug. 25, 201). Moreover, if the judgment on the merits is changed in the appellate court, the creditor of the provisional execution bears the obligation to return the goods received by the sentence of provisional execution and to compensate for damages incurred by the provisional execution or by the exemption of the judgment on the merits. However, the obligation to restore the original state and the obligation to compensate for damages come from the concept of fairness in order to restore the original state as if it were not executed by the original execution, unless special circumstances exist, the creditor shall pay the amount paid and damages incurred by the previous judgment on the basis of the statutory interest rate after the date it was paid.

With reference to the reasoning of the judgment of the court of first instance, the court below held that the plaintiff's claim filed by the plaintiff claiming the payment of provisional payment corresponding thereto and damages for delay from the date of the provisional execution on the ground that the judgment on the merits of provisional execution rendered by the plaintiff was partially cancelled at the appellate court, is a claim for the return of provisional payment and damages for delay from the date of the payment, and held the facts based on the adopted evidence. The court below held that the plaintiff's obligation to pay damages for delay from 174,684,093 to 137,970,970,000 to 14,85,40 won per annum from August 24, 2007 to June 8, 2009 to 14,85,000 won per annum (137,970,000 x 65 days x 65 days x 36% per annum 65 days x 65 days x 2825,297,208.

In light of the above legal principles and records, the judgment of the court below is just and acceptable. Contrary to the allegations in the grounds of appeal, there are no errors in the misapprehension of legal principles as to the right to dispose of parties, the invalidation and scope of provisional execution, the scope of return of provisional payment, and damages caused by provisional execution

The Supreme Court precedents cited in the grounds of appeal are different from the instant case and are inappropriate to be invoked in the instant case.

2. As to the fourth ground for appeal

According to the records, on March 2, 2011, the plaintiff submitted in the first instance court's preparatory document stating that "the plaintiff would make a provisional payment to the defendant and settle the amount by the first instance court's judgment after the final judgment became final and conclusive. The plaintiff also consented to the plaintiff's representative through the defendant's agent at the time when the defendant did not make an appeal and requested the plaintiff to settle the amount in accordance with the appellate court's judgment. On September 6, 2010, the plaintiff received the appellate court's judgment and requested the settlement of the settlement (Evidence No. 3) from the plaintiff's side at the time when the plaintiff received the appellate court's judgment and sent the settlement statement (Evidence No. 3) to the defendant, and the defendant responded that only a part of the plaintiff's claim is different from the contents of the judgment, and the contents of the settlement statement (Evidence No. 3) should be known to the effect that "the remainder of the court's provisional payment less the principal and the damages for delay from June 8, 2009."

In full view of this, the purport of the Plaintiff’s assertion is that, rather than that there was an agreement between the parties to separately settle the scope of the return of the provisional payment after the judgment became final and conclusive, the amount paid according to the judgment of the first instance is a provisional payment, and thus the validity of the payment is not definite, so it is necessary to make a subsequent settlement. Therefore, it cannot be deemed that the Plaintiff recognized the existence of an agreement on settlement as alleged by the Defendant with the above preparatory document. Thus, even if the Defendant invoked the Plaintiff’s assertion, it cannot be deemed that the prior confession regarding

In the same purport, the lower court is justifiable to have determined that there is no evidence to prove that the Plaintiff and the Defendant agreed to settle the amount of claims again after the appellate judgment was rendered. The lower court did not err in the misapprehension of legal principles as to non-influence facts, incomplete hearing

3. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee In-bok (Presiding Justice)