Where an attorney has agreed to return provisional payments based on the judgment of the court with a declaration of provisional execution, due to the reduction of the cited amount in the higher court, the legal nature of the duty to return provisional payments by the attorney;

In the event that an attorney, at the time of receiving the provisional execution on a claim for damages, agrees that “all problems arising after the provisional payment shall be borne by the recipient, and where it is proved that there is no liability for the future payment, the amount to be received shall be immediately refunded if there is any increase or decrease in the amount subject to the confirmation of the judgment based on the flexible judgment, it is found that there is no all or part of the obligor’s liability for payment, and that it is difficult for the obligee to receive the provisional payment if it becomes insolvent due to the obligee’s consumption of all of the medical expenses or living expenses, etc., and such agreement is concluded on the legal representative. Therefore, it is reasonable to interpret that the obligee, separate from the obligation to return the provisional payment to be borne by the obligee, agreed to assume the obligation to return the provisional payment in excess of the legal representative, who is the recipient, bears the responsibility for return of the provisional payment.”

Article 201 of the Civil Procedure Act, Article 105 of the Civil Act

National Federation of Bus Transport Business Cooperatives (Attorney Park Young-chul, Counsel for the plaintiff-appellant)

Defendant

1. The defendant shall pay to the plaintiff the amount of 55,985,821 won and the amount of 5% per annum from March 11, 1995 to September 22 of the same year and 25% per annum from the next day to the date of full payment.

2. The plaintiff's remaining claims are dismissed.

3. Two minutes of the lawsuit shall be borne by the plaintiff, and the remainder shall be borne by the defendant.

4. A provisional execution may be effected only to the amount equivalent to one half of the winning amount of the plaintiff under paragraph (1).

The defendant shall pay to the plaintiff the amount of 61,207,532 won and the amount at the rate of 25 percent per annum from March 11, 1995 to the full payment date.

1. The repayment of provisional payments; and

The following facts can be acknowledged in full view of the evidence Nos. 1 through 15, evidence No. 16-1 through 6, evidence No. 17-2, evidence No. 10-1, and evidence No. 10-2, and evidence No. 10, respectively, and there is no counter-proof.

(1) When the traffic accident was caused by the urban bus (vehicle number omitted) owned by the non-party telecommunications company (hereinafter "the non-party telecommunications company"), the non-party final sea appointed the defendant as his legal representative and filed a lawsuit claiming compensation against the non-party 92 Gohap295 on March 5, 1993 against the non-party 76,847,208 won (the details shall be 16,713,151 won: 57 won: 57 won, 300 won, 300 won, 100 won, 100 won, 300 won, 195%, 300 won, 195%, 100 won, 195%, 30.5%, 100 won, 30.5%, 15%, 200 won, 30.5%, 15%, 30.5%, and 5%, respectively, of the above amount to the defendant.

(2) On September 21, 1993, the Daejeon High Court filed an appeal with 93Na1785 against the last part of the above judgment and extended the purport of the appeal. On September 21, 1993, the Daejeon High Court paid 41,568,04 won, 8,692,257 won, 5,000 won, 1,767,846 won, and 940 won per annum from the day following the 29th day of the above judgment to the 92th day of the above judgment, 195th day of the final judgment to the 9th day of the first fiveth day of the above judgment, 195th day of the final judgment to the 9th day of the 9th day of the first fiveth day of the payment, 29th day of the 9th day of the first fiveth day of the first day of the first day of the first half of the first half of the 19th day of the first half of the damages.

(3) The final judgment of the Daejeon High Court is dissatisfied with the judgment of the said Daejeon High Court and filed an appeal with the Supreme Court No. 93Da51874. As a result, on January 25, 1994, the Supreme Court reversed the part of the final judgment ordering payment as the obligation to pay the fixed-term fund (including the part ordering the payment of the final judgment) and remanded the case to the Daejeon High Court. The plaintiff (final dismissal)'s remaining appeal is dismissed.

(4) On July 4, 1994, when the case was reversed and remanded, and the case was pending in Daejeon High Court 94Na1003, the appeal was withdrawn on July 4, 1994. However, on September 15, 1999, the court denied the validity of the withdrawal of appeal on September 15, 199 of the same year, and rendered a judgment that "4,14,169 won for the last year, 34,169 won for the medical treatment expenses, 9,59,259 won for the future medical treatment expenses, and 9,59,259 won for the first time (Provided, That the portion of the claim for consolation money by the judgment of the above Supreme Court is determined as final judgment of the above Supreme Court)" with the rate of 164,152,372 won for the last year from October 12, 191 to September 15, 1994 as well as the rate of 5 percent per annum from the next day."

(5) As to the judgment of March 5, 1993 on the party members, the party members applied for the suspension of compulsory execution with 93Kao11, and was decided to suspend compulsory execution only for the part ordering payment exceeding 36,847,208 won among the judgment of April 1, 1993. In addition, as to the judgment of the Daejeon High Court on September 15, 1994, the plaintiff applied for the suspension of compulsory execution with 94Kao76 at the same court. However, as to the judgment of the Daejeon High Court on September 15, 1994, the decision of dismissal was rendered by the same court on October 19, 194 on behalf of the insurer of the dialogue, as shown in attached Table 1 on behalf of the party members, the plaintiff paid the total sum of 187,925,245 won from March 31, 1993 to July 24, 1994 to the defendant received the above amount from the plaintiff and the defendant.

(6) On the other hand, after remanding the Daejeon High Court, the Court appealed against the judgment and filed an appeal to the Supreme Court again as the Supreme Court Decision No. 94Da51543 on March 10, 1995. As a result, the Supreme Court affirmed the validity of the withdrawal of appeal for the dialogue traffic on March 10, 1995, and sentenced the Supreme Court's judgment that "the lawsuit concerning the claim for the expenses for future treatment and the claim for future nursing expenses was terminated by the judgment of the Supreme Court No. 93Da51874 on January 25, 1994, and the lawsuit concerning the claim for future nursing expenses and the future nursing expenses was filed by the judgment of the Cheongju District Court, which is the first instance court, on March 5, 1993."

According to the above facts, the communication between the final sea is obligated to pay to the final sea the sum of KRW 44,101,201,201, and the sum of KRW 444,101,201, and consolation money, and the annual rate of KRW 55% per annum from October 12, 1991 to September 21, 1993, the amount of KRW 57,134,057, and the annual rate of KRW 57,134,057, and the annual rate of KRW 55% from October 12, 1991 to March 5, 193, and the amount of KRW 25% per annum from the next day to the date of full payment, as seen above, the defendant is ultimately liable to return the above amount to the final sea and the above agreed amount of KRW 187,925,245.

2. The defendant's scope of liability

When calculating the amount to be returned by the Defendant pursuant to Article 477 of the Civil Act and Article 479 of the Civil Act (Order of Appropriation of Performance to the Expenses, Interest, and Principal) on the ground that there is no evidence as to whether there was a designation as to the appropriation of performance between the parties at the time when the above judgment was paid to the final settlement, it is obvious that the amount is KRW 55,985,821 as shown in the attached Table 2.

3. Judgment on the defendant's assertion

(1) The defendant, on behalf of the plaintiff, received the judgment amount as stated in Gap evidence Nos. 9 through 15, and No. 17 from the plaintiff and delivered it to the plaintiff for all final damages. It is true that the defendant received more than 5,985,821 won as stated in the attached Table No. 2 in excess of the remainder of the statutory appropriation as stated in the attached Table No. 2, but the legal effect of the agreement on the receipt of the excess provisional payment or the return of the excess provisional payment belongs to the final settlement, and therefore, the defendant is not liable for the return of the excess provisional payment. However, as seen above, the defendant is liable for the return agreement between the plaintiff and the defendant separately from the fact that the defendant is liable for the return of the excess provisional payment. Thus, it is not allowed to accept the above defendant's assertion.

(2) At the time of receiving the judgment amount as stated in Gap evidence Nos. 10 through 15, the defendant's agreement that "all problems that occur after the receipt shall be responsible for the recipient." It should be interpreted as "where the defendant's final settlement without immediately delivering the amount, and the occurrence of problems, such as the occurrence of the problem, causing damage to the dialogue, the defendant shall be held liable for civil and criminal liability." The defendant's recognition of non-conditional liability under the above flexible provision is null and void as it goes against good customs and other social order. In addition, since the damage claim for the last settlement is much larger than the receipt amount at the time of the defendant's receipt of the above judgment amount, it is not expected that the excess provisional payment would occur, and it constitutes a mistake in the important part of the expression of intent, and the defendant is revoked. Accordingly, the defendant asserts that there is no liability under the above excessive provisional payment agreement.

In interpreting the content of an agreement between the parties, the content of the agreement, the motive and background leading up to the agreement, the purpose of the agreement to be achieved, the genuine intent of the parties, etc. shall be comprehensively considered, and it shall be reasonably interpreted in accordance with logical and empirical rules.

However, according to the above evidence, it is recognized that the defendant agreed to the effect that the defendant will immediately return the amount received in case where the defendant received the judgment amount on behalf of the final damage and all the problems arising after the receipt of the judgment amount on behalf of the defendant during eight times from March 31, 1993 to October 29, 194, or where it is proved that the plaintiff is not liable to pay it later, it is reasonable to interpret the meaning of this agreement as an agreement to bear the responsibility for the return of the excess amount in addition to the obligation for return of the final provisional payment in consideration of the following various circumstances.

As seen earlier, even though the judgment of the court of first instance and the court of second instance was rendered but it was difficult to confirm the judgment, such as the reversal and return by the Supreme Court, and how the contents of the judgment will be modified, the plaintiff, who was dismissed by a motion for suspension of compulsory execution against the judgment of the Daejeon High Court on September 15, 1994, is found to have no all or part of the liability for the payment of the insurance money to the plaintiff according to the result of the higher judgment, and it is anticipated that it would be difficult to receive the provisional payment received by the last year would be returned in the event of insolvent due to the consumption of all of the medical expenses or living expenses, etc., and in the sense of securing the return of the provisional payment to the defendant, who

On the other hand, regardless of whether the provisional payment received by the defendant is delivered to the final understanding, the effect of the repayment of the judgment occurs, and if it is found that the provisional payment was paid in excess of the amount, the plaintiff can be returned from the final damage, even if there is no special agreement, so interpreting the above agreement as a preparation for the defendant's embezzlement, as alleged by the defendant, cannot be adopted because it is unreasonable to adopt the return agreement between the plaintiff and the defendant,

In addition, the text of the above return agreement is not based on the vague provision, but on the condition that the amount of judgment is finalized according to the flexible judgment, if there is an increase or decrease in the objection, it shall be deemed that the defendant, a legal expert, could have sufficiently predicted at the time of receiving the judgment amount.

Finally, even if the Defendant was unable to expect the occurrence of excess amount because the damage claim for the last damage at the time of the agreement is much larger than the amount received, it is nothing more than the case where there is an error in the motive of expression of intent, and there is no evidence suggesting that the Defendant made the motive as the content of expression of intent. Therefore, the Defendant cannot cancel the declaration of intent.

Ultimately, the defendant's assertion that the above agreement is merely an acting act, or an act of invalidation or gross mistake is revoked, is without merit.

4. If so, the defendant is obligated to pay to the plaintiff the amount of 55,985,821 won and the damages for delay at the rate of 5% per annum as prescribed by the Civil Act from March 11, 1995 to September 22, 1995, which is the date of this decision from September 11, 1995, and 20% per annum as prescribed by the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings from the next day to the date of full payment. Therefore, the plaintiff's claim is justified within the above scope of recognition, and the remaining claims are dismissed as it is without merit. It is so decided as per Disposition.

Judge Lee Jong-chul (Presiding Judge)