A. In a case where a provisional execution declaration becomes invalidated due to a change in the judgment on the merits after the Plaintiff received a full payment from the Defendant with respect to a claim against a third party obligor on the title of debt with the judgment on the provisional execution declaration (affirmative)

B. The case holding that the part that was reversed by the judgment of remand was included in both the Plaintiff’s principal and damages for delay and the Defendant’s application for the return of provisional payment equivalent to the amount executed as additional tax and damages for delay, but the judgment of the court below was reversed by deeming that only the claim for principal of additional tax and the claim for the return of provisional payment equivalent to the same amount was reversed after the remand.

A. As the Plaintiff’s judgment on the provisional execution declaration is named in the name of debt, where the provisional execution declaration becomes invalidated due to the change of the judgment on the merits after receiving the full payment from the Defendant with respect to a claim against a third party obligor, the receipt of the full payment is conducted as an execution against the Defendant’s claim, and thus, it should be deemed as identical to the performance performed by the Defendant. As such, the Plaintiff obtained unjust enrichment equivalent to the full payment under the Defendant’s damage, thereby making it clear that it would have the nature that it should be returned to the Defendant as a restoration. Therefore, the full payment shall be deemed as a payment due to the declaration of provisional execution and shall be included in the content of

B. The case holding that the part that was reversed by the judgment of remand was included in both the Plaintiff’s claim for the payment of additional tax and delay damages and the Defendant’s claim for the return of provisional payment equivalent to the amount executed as additional tax and delay damages, but the judgment of the court below was reversed by deeming that only the claim for the principal of additional tax and the claim for the return of provisional payment equivalent to the same amount was reversed.

(a) Article 201(2) of the Civil Procedure Act;

A. Supreme Court Decision 80Da2626 delivered on January 19, 1982 (Gong1982, 257)

Plaintiff 1 and 2 others, Plaintiffs’ final confession

Attorney Kim Jong-sung, Counsel for the plaintiff-appellant on the Seoul Central Machinery Parts

Supreme Court Decision 90Meu1278 Delivered on February 26, 1991

Seoul High Court Decision 91Na12648 delivered on July 15, 1992

The part of the lower judgment against the Defendant regarding the claim for return of provisional payment shall be reversed, and that part of the case shall be remanded to the Seoul High Court.

The plaintiff's appeal is dismissed.

The costs of appeal dismissed shall be assessed against the plaintiff.

1. We examine the Plaintiff’s grounds of appeal.

After examining the reasoning of the judgment below in light of records, the court below held that the plaintiff cannot be deemed to bear the additional tax imposed on the plaintiff because the plaintiff did not properly pay the transfer income tax and pay the tax amount within the date set by the Income Tax Act, since the defendant, the purchaser of the land of this case, was fully responsible for the burden of the transfer income tax imposed on the plaintiff who is the seller and did not agree to deal with it. The decision of the court below is justified and there is no violation of law of misunderstanding of facts due to violation of the rules of evidence such as the theory

2. We examine the defendant's grounds of appeal.

According to the reasoning of the judgment below, the court below rejected the above application by the defendant, on May 31, 1989, on the ground that the plaintiff received the above money from the above bank on June 29 of this year after receiving attachment and assignment order of KRW 871,03,553 out of the amount of deposit claims to the non-party foreign exchange bank upon the plaintiff's winning judgment of the court of provisional execution rendered in favor of the plaintiff on May 31, 1989.

However, as in the instant case, the Plaintiff’s judgment on the provisional execution declaration form the name of debt and received the full payment from the Defendant with respect to a claim against a third party obligor, and then the provisional execution declaration becomes null and void due to the change of the judgment on the merits. As such, the receipt of the full payment is limited to the Defendant’s execution of the Defendant’s claim and constitutes the collection of the claim. As such, the payment of the full payment ought to be deemed to be the same as the payment the Defendant performed. Accordingly, it is obvious that the Plaintiffs obtained unjust enrichment equivalent to the full amount of the claim under

Therefore, the above amount should be considered as a payment due to the declaration of provisional execution and should be included in the contents of the defendant's obligation to return the provisional payment.

As a result, the court below's dismissal of the defendant's above motion from the opposing opinion is illegal, so the argument that points this out is justified.

3. Finally, the judgment of the court below is considered to have erred in determining the scope of the judgment. In other words, the part of the case is reversed among the part against the defendant in the judgment of the court below prior to remand and remanded to the court below. The purport of the judgment prior to remanding the case is that the part concerning the claim for return of agreed amount equivalent to the plaintiff's additional tax and the claim for return of provisional payment equivalent to the above additional tax is reversed and remanded, and as a matter of course, the part concerning the claim for return of agreed amount and the claim for return of provisional payment equivalent to the above additional tax amount of the plaintiff's additional tax shall be considered to be included in all of the claims for the payment of the principal amount of the additional tax and the damages for delay as the incidental claim, and the part concerning the claim for return of provisional payment equivalent to the above additional tax and the damages for delay shall be considered to be included.

Nevertheless, after remanding, the judgment below limited the scope of adjudication by deeming that only the claim portion of KRW 113,768,920 of the principal and the claim portion of the same amount were reversed, and thus, the scope of adjudication is limited to only that portion. Accordingly, the part of the plaintiff's claim seeking the payment of damages for delay on the above additional tax and the part of the defendant's claim seeking the return of the provisional payment amount which the plaintiff already executed as damages for delay on the above additional tax and the claim portion of the defendant's claim for the return of the provisional payment

4. Therefore, the plaintiff's appeal is dismissed, and the costs of appeal are assessed against the losing party. The part against the defendant (the part concerning the application for return of provisional payment) among the judgment below is reversed, and this part of the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.