Invalidation and reinstatement of a declaration of provisional execution and nature of liability for damages.

If the declaration of provisional execution becomes effective due to the change of the judgment on the merits, the court may order the return of the goods paid due to the declaration of provisional execution as well as the compensation for damages caused by the provisional execution. It is reasonable to view the above liability as a kind of strict liability based on the equitable principle.

Article 201(2) of the Civil Procedure Act

Supreme Court Decision 65Da544 Decided May 31, 1965

Plaintiff

Korea

Seoul High Court Decision 76Na186 delivered on April 23, 1979

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

The defendant's grounds of appeal are examined.

According to Article 201 (2) of the Civil Procedure Act, "where a judgment on the merits is modified, the court shall order the plaintiff, at the defendant's request, to return the payment due to the declaration of provisional execution, and to compensate the damage caused by the provisional execution or to obtain the exemption thereof." Thus, in such a case, the court may order the plaintiff to return the goods paid due to the declaration of provisional execution as well as to compensate for the damage caused by the provisional execution. Such obligation of the plaintiff is a kind of strict liability based on the equitable principle.

According to the records of this case, the defendant filed an application with the court below for the return of the amount of KRW 30,008,000 paid to the plaintiff due to the provisional execution order of the court below prior to remand and the amount of KRW 5% per annum from March 20, 1970 to the full payment system. It is evident that the defendant claims damages at the civil legal rate from March 20, 1973, which is the last day on which the amount was paid, as well as from the return of the amount paid due to the provisional execution order.

However, the court below accepted the claim for the return of KRW 30,00,000 paid due to the above provisional execution, but the nature of the claim for the return due to the provisional execution is the claim for return of unjust enrichment. In this case, there is no assertion or proof that the plaintiff, who received the above money based on the judgment of the provisional execution declaration, was malicious. Accordingly, the court below rejected the defendant's claim for damages other than the above, on the ground that the plaintiff is merely obligated to pay interest at the rate of 5% per annum from February 21, 1978 to the full payment.

The above judgment of the court below is ultimately affected by the misapprehension of the legal principles of Article 201 (2) of the Civil Procedure Act concerning the restoration of provisional execution and the claim for damages, or by failing to properly grasp the defendant's motion, and thus, it is reversed by accepting the defendant's ground of appeal on this point and rejecting the defendant's claim in the judgment below and remanded this part of the case to the court below. It is so decided as per

Justices Han-jin (Presiding Justice)

Since it is during the Korean Supreme Court judge's overseas business trip, it is impossible to sign. (Presiding Justice)