The defendant's appeal is dismissed.

Expenses for appeal shall be borne by the defendant.

Purport of claim and appeal

1. Purport of the claim.

Pursuant to the main sentence of Article 420 of the Civil Procedure Act, paragraphs (1) and (2) of the part concerning the grounds for the judgment of the first instance, which partially accepts the judgment.

(1) The judgment of the Supreme Court that the Defendant asserted the diversion of provisional seizure and its ground is dealing with the issue of the alteration of the right to be preserved in the procedure of the provisional seizure. Since the judgment against the merits becomes final and conclusive, and the defendant's assertion of the parties concerned as to the offset defense by the defendant and the conclusion of the contract of this case becomes null and void, the defendant has the right to claim a return of unjust enrichment of KRW 522,454,00 equivalent to one half of the construction cost paid by himself and C to the plaintiff according to the contract of this case, and thus, the defendant has the right to claim a return of unjust enrichment of KRW 1,04,900, which is equivalent to one half of the construction cost paid by him and C to the plaintiff according to the contract of this case, this right

In regard to this, the plaintiff asserts that the defendant claims for the payment of the above construction price are offset claims even in the Chuncheon District Court 2015Gahap5873 case, and therefore, the defendant's claim for offset against Article 259 of the Civil Procedure Act should be dismissed. Even if so, since the defendant's obligation to return his construction price and the defendant's obligation to transfer ownership of the new building of this case are in simultaneous performance relationship, it is re-claimed that the defendant's claim for the return of the construction price with the right to defense of simultaneous performance cannot be offset against the plaintiff's

Judgment

First of all, there is no evidence to prove that the defendant alleged the above claim for construction price as a offset claim even in the above 2015Gahap5873 case, and the plaintiff's above assertion is without merit.

If set-off against the other party's claim is allowed with automatic claim which is set up against the right of defense of simultaneous performance, it would lose the other party's opportunity to exercise the right of defense by either party's declaration of intent of set-off.