Plaintiff (Attorney Lee Jong-sung, Counsel for the plaintiff-appellant)

An intervenor;

Defendant

April 22, 2008

Seoul Central District Court Decision 2007Gadan193421 Decided October 19, 2007

1.The judgment of the first instance shall be modified as follows:

A. The Defendant’s compulsory execution based on the Seoul Central District Court Decision 2001Na4124 Decided 29,836,524 won and the part exceeding the amount calculated by the rate of 25% per annum from June 9, 2007 to the date of full payment.

B. The plaintiff's remaining claims are dismissed.

2. The decision to suspend compulsory execution made on November 20, 2007 with respect to the case of applying for the suspension of compulsory execution of 207Kaga8534 shall be authorized only to the part exceeding the amount stated in paragraph 1-A.

3. The total cost of the lawsuit shall be borne by each party, including the cost of participation.

4. Paragraph 2 can be provisionally executed.

The judgment of the first instance shall be revoked, and the defendant's compulsory execution against the plaintiff shall not be permitted in accordance with the Seoul Central District Court Decision 2001Na4124.

1. Basic facts

A. On October 23, 191, the Defendant married with Nonparty 1, and formed a single marriage with Nonparty 3 and Nonparty 2.

B. At around 16:30 on April 12, 1997, the defendant, the non-party 1, the non-party 2, and the non-party 3 suffered each injury on the part of the motor vehicle in which the non-party 4 suffered from the traffic accident where the non-party 4 was driven on the part of the rear part of the motor vehicle in the frontnam Highway, on board the motor vehicle (motor vehicle number omitted) at the seat of the flow of the motor vehicle on the southnam Highway, and the water is the seat of the Taeduk Research Complex.

C. After all, the Plaintiff’s assistant intervenor, as the attorney of the Defendant, filed a lawsuit seeking compensation against the Plaintiff, who is the insurer of Nonparty 4, as Seoul District Court Decision 98Da163411. On August 12, 1998, the said court rendered a compulsory conciliation order that “the Plaintiff shall pay Nonparty 3 KRW 22 million to the Defendant, KRW 2.5 million to the Defendant, KRW 2.7 million to Nonparty 1, and KRW 10 million to Nonparty 2 by September 2, 1999.”

D. The Plaintiff’s Intervenor received the above compulsory mediation decision, and then notified Nonparty 1 of whether he/she raised an objection, and asked whether he/she raised an objection to the Defendant, etc., Nonparty 1 told the Defendant that he/she would raise an objection from the Defendant and Nonparty 3, but told the Defendant that he/she would not raise an objection, and then only Nonparty 3 raised an objection against the Plaintiff’s Intervenor.

E. Accordingly, on August 31, 1999, the Plaintiff’s Intervenor submitted a written objection to only Nonparty 3 among the above compulsory adjustment decisions, and notified the Plaintiff that he would receive the amount of compulsory adjustment decisions against the Defendant and Nonparty 1 and Nonparty 2 who did not object to compulsory adjustment. Meanwhile, the Defendant did not notify Nonparty 1 of the fact that he did not object to the compulsory adjustment. Meanwhile, on September 1, 1999, the Plaintiff voluntarily submitted the written objection to the above court without notifying the Plaintiff’s Intervenor.

F. Upon the lapse of the objection period against the above compulsory adjustment, the Plaintiff’s Intervenor asked Nonparty 1 to obtain the certificate of his personal seal impression for the receipt of the compulsory adjustment amount. Nonparty 1 did not reach the Defendant, and only brought the certificate of personal seal impression of Nonparty 1 and Nonparty 2.

G. On September 3, 1999, the office clerk of the Plaintiff’s Intervenor submitted Nonparty 1 and 2’s certificate of personal seal impression to the employee in charge of the Plaintiff. The Defendant’s certificate of personal seal impression is to be submitted later, and the Plaintiff received the total amount of KRW 34.7 million (Defendant 25 million + Nonparty 12.7 million + Nonparty 2.7 million + Nonparty 2.7 million) from the Plaintiff, the office clerk of the Plaintiff’s Intervenor signed and affixed the Plaintiff’s receipt and the written waiver of his right to the above traffic accident other than the above amount.

H. After that, on December 8, 200, the above court rendered a judgment in favor of the non-party 3, 2000, to pay KRW 21,916,812 and its delay damages, and each of the above judgments against the defendant, on the ground that the plaintiff's supplementary intervenor, who is the attorney of the plaintiff, received the compulsory adjustment decision and renounced the plaintiff's claim against the plaintiff.

I. Accordingly, the defendant and the non-party 3 appealed to the same court No. 2001Na4124, and the appellate court also represented the plaintiff's assistant intervenor by the defendant, etc. on December 21, 2001, and the above court accepted part of the appeal by the defendant and the non-party 3 on January 25, 2002, and recognized additional KRW 767,664 as to the non-party 3. The court ordered the defendant to pay to the non-party 21,236,426 and to pay to the non-party 25% annually from April 12, 1997 to January 25, 2002 on the ground that the agreement on the waiver of the above claim was made by mistake of the plaintiff's assistant intervenor to raise an objection against the defendant's compulsory conciliation decision, and thus, the above agreement against the defendant was lawfully revoked around January 6, 200, and to pay the amount by 21,236,426 won.

(j) Accordingly, the Defendant and Nonparty 3 appealed, and the Supreme Court Decision 2002Da15719, which was the final appeal, also rendered a judgment dismissing all the appeals on April 26, 2002 by the Plaintiff’s Intervenor on behalf of the Defendant, etc.

(k) On October 17, 2002, the Plaintiff deposited KRW 5,164,451, which was paid to the Intervenor’s Intervenor on September 3, 199, after deducting KRW 25 million from total damages based on Seoul District Court Decision 2001Na4124 decided Oct. 17, 2002, and damages for delay up to that day. The Plaintiff deposited KRW 5,164,451 with Seoul District Court Decision 2002Da3989.

T. Meanwhile, Nonparty 1, who was issued prior to the divorce with the Defendant, opened a bank account in its name after having used a certified copy of the family register issued prior to the divorce with the Defendant, requested the Plaintiff’s Intervenor to transfer KRW 25 million, excluding the remuneration of the Plaintiff’s Intervenor, to the above bank account in the name of the Defendant. Nonparty 1 transferred KRW 20,000 to the above bank account without the Defendant’s permission. Nonparty 1 voluntarily consumed the said money by withdrawing the said money and making investments in stocks.

[Ground of recognition] Evidence Nos. 1-1 through 3, Evidence Nos. 2, 3, Evidence Nos. 4-1, 2, Gap, 5, 6, Gap, or evidence Nos. 25, 28, and evidence Nos. 1-1, and the purport of the whole pleadings

2. Determination on the cause of the claim

A. The parties' assertion

(1) Hawon

㈎ 서울지방법원 2001나4124 판결 에 기하여 원고가 피고에게 지급하여야 할 금원은 원고가 1999. 9. 3. 피고에게 2,500만 원을 지급하고, 2002. 10. 17. 5,164,451원을 변제공탁함으로써 모두 변제되었으므로 위 판결에 기한 강제집행은 불허되어야 한다.

㈏ 서울지방법원 2001나4124 판결 에 기하여 원고가 피고에게 지급하여야 할 금원이 모두 변제되었음에도 여전히 피고가 위 판결에 기하여 집행을 실시하는 것은 권리남용이다.

Doz. Doz.

The payment of KRW 25 million as asserted by the Plaintiff does not constitute a ground for objection on the ground before the closing of argument. The Plaintiff did not receive KRW 25 million, and the Plaintiff did not appoint the Plaintiff’s Intervenor as his agent. As such, the payment to the Plaintiff’s Intervenor is not effective against the Defendant.

(b) Markets:

(1) Where an executive title subject to an objection in a lawsuit seeking objection is a final and conclusive judgment, the grounds shall accrue after the closure of arguments at the trial court of the relevant lawsuit, and the circumstances arising prior thereto shall not be deemed the grounds for the objection (Article 44(2) of the Civil Execution Act), and where the repayment deposit is valid, the payment of the full amount of the obligation and the deposit of the full amount of the obligation shall be made. Except in special circumstances where the obligee does not accept the said shortage, the deposit of a part other than the full amount of the obligation shall not have the effect of extinguishing the obligation even with respect to the deposit (see Supreme Court Decision 98Da17046, Oct. 13, 1998).

On September 3, 1999, the reason why the plaintiff paid KRW 25 million to the supplementary intervenor of the plaintiff on September 3, 1999 is clear that the plaintiff was incurred before December 21, 2001, which is the date of closing of argument in the Seoul District Court 2001Na4124 case, for which the plaintiff sought the exclusion of enforcement power. The plaintiff's deposit for repayment (deposit money 5,164,451) dated October 17, 2002, is null and void as a deposit for a part other than the total amount of obligation under the above final and conclusive judgment. Thus, the plaintiff's assertion on the premise that the cause of the final and conclusive judgment is extinguished is without merit.

As to this, the plaintiff asserts that in practice, if the judgment of the appellate court becomes final and conclusive after the defendant paid a part of the judgment amount after the judgment of the court of first instance attached to provisional execution, it is natural that the defendant pays only the remaining amount after deducting the amount he paid. The same applies to this case.

If an obligor, who was sentenced to a provisional execution, voluntarily pays the principal and interest of the court of first instance up to the time of the judgment to the creditor, but appealed against the amount quoted in the court of first instance by filing an appeal against the judgment of the court of first instance, it is reasonable to deem that the obligor has paid the amount to the creditor in order to prevent the expansion of damages for delay as cited in the judgment of the court of first instance and to exempt compulsory execution based on the provisional execution attached to the judgment, not to pay the amount by his own recognition that the obligor has a debt equivalent to the amount quoted in the judgment of the court of first instance, and to prevent the extension of damages for delay as cited in the judgment of the court of first instance and to exempt the obligor from a final execution based on the provisional execution attached to the judgment. As such, even if the obligor asserts that the amount was paid by the provisional execution attached to the judgment of the court of first instance, the appellate court does not consider such reasons. Accordingly, the effect of extinguishment of the claim by the payment becomes effective only when the judgment becomes final and conclusive, and therefore, the ground for excluding the original claim for final execution of a final judgment (see Supreme Court Decision 2015Da.7.15.

In the event that the contents of the judgment are contrary to substantive legal relations, the execution of the judgment is not allowed as an abuse of rights in case where it is deemed that the execution of the judgment is considerably improper and it is obviously unreasonable to allow the other party to receive the execution of the judgment, and it is not permissible to do so (see Supreme Court Decision 9Da32899 delivered on Nov. 13, 2001, etc.).

In light of the following circumstances, which are acknowledged as comprehensively considering the overall purport of arguments in Gap evidence 6, Gap evidence 1, 11, 13, 21, and 23 in the above facts of recognition: (i) around June 198, the defendant visited the office of non-party 1 and the plaintiff assistant intervenor; (ii) the defendant entered the office of the non-party 1 and the plaintiff assistant intervenor with a thickness in the court of first instance to accept the physical appraisal during the court of first instance; and (iii) the defendant did not delegate the lawsuit to the plaintiff assistant intervenor; and (iv) the defendant delegated the plaintiff assistant intervenor after filing an objection to the compulsory mediation order; and (v) the defendant delegated the defendant's right of representation to the plaintiff assistant intervenor on September 3, 199; and (v) the defendant did not have any effect on the part of the plaintiff assistant's attorney's right of representation; and thus, (v) the defendant's right of representation and the defendant's attorney are not assigned to the plaintiff assistant intervenor on September 3, 1999.

However, even if the circumstances are the same, the plaintiff also paid the compulsory adjustment decision without receiving the defendant's certificate of personal seal impression in violation of the custom as seen above, and the non-party 1 returned the above money to the defendant, resulting in no money that the defendant received, and as a result, the defendant denies the acceptance of the case by the plaintiff's assistant intervenor, it is difficult to deem that the contents of the final and conclusive judgment of this case considerably unfair execution and allow the other party to execute it is clearly contrary to the justice and thus, it is difficult to view that the execution of the final and conclusive judgment of this case is not acceptable in social life.

Therefore, this part of the plaintiff's assertion is without merit.

Article 25(1) of the Civil Code provides that the plaintiff shall pay the defendant 25 million won as compensation for the waiver of his claim through the plaintiff's assistant intervenor. Since the agreement on waiver of claim was legally cancelled by the defendant, the amount paid under the above waiver agreement shall not be deemed to be the repayment of the debt, but as long as the legal ground for payment has ceased to exist, the plaintiff shall have the claim for return of unjust enrichment equivalent to the amount of 25 million won against the defendant. Since the plaintiff's lawsuit of this case was paid in 25 million won, it shall be deemed that the plaintiff's claim for return of unjust enrichment should be offset against the claim for return of unjust enrichment, and the plaintiff's intent to request the exclusion of the execution of that part shall be included.

Therefore, on June 8, 2007, when the above claim for return of unjust enrichment was delivered to the defendant on which the maturity date of repayment was 25 million won and the defendant's judgment amounting to 54,836,524 won [21,236,426 won + delay damages up to the set-off date 33,60,98 won [21,236,426 won and delay damages up to 206% per annum 50% per annum from April 12, 1997 to January 25, 202] The defendant's claim for payment of unjust enrichment was delivered to the defendant 2,50,924 won (21,236,426 x 5% x 1750/365 x 269% per annum) and the defendant's claim for payment delay damages up to 260% per annum 264,265% per annum per annum from January 25, 2002.

3. Conclusion

Therefore, the defendant's compulsory execution based on the Seoul Central District Court Decision 2001Na4124 delivered on the defendant's 29,836,524 won and the part which exceeds the amount calculated by the rate of 25% per annum from June 9, 2007 to the date of full payment. The plaintiff's claim of this case shall be accepted within the above recognized scope as reasonable, and the remaining claim of the plaintiff shall be dismissed as it is without merit. Since the judgment of the court of first instance is unfair with this conclusion, it is so unfair as to accept part of the plaintiff's appeal and to revise the judgment of the court of first instance as above. It is so decided as per Disposition.

Judges Kim Young-soo (Presiding Judge) (Presiding Justice) Kim Han-chul