[1] The case holding that where both parties to a lawsuit maintain as it is, while fulfilling each other according to the purport of ordering repayment in accordance with the order of the judgment after the judgment of the appellate court having rendered a declaration of provisional execution, both parties to a lawsuit including filing an appeal, it shall not be liquidated by a new agreement as a conclusive performance of the obligation according to the contents of the judgment, but it shall be deemed that both parties have performed one another in lieu of, or to be relieved

[2] The meaning of "a case where it is deemed appropriate for an obligor to dispute the existence or scope of an obligation" under Article 3 (2) of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings

[1] The case holding that in case where both parties have maintained the lawsuit, such as filing an appeal, while fulfilling each other according to the purport of ordering repayment in accordance with the order of the judgment after the judgment of the appellate court having rendered a declaration of provisional execution, both parties are not liquidated by a new agreement as a conclusive performance of the obligation according to the contents of the judgment, but by performing one another in lieu of or avoiding compulsory execution based on the declaration of provisional execution

[2] Article 3 (2) of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings ("the case where it is deemed reasonable for an obligor to dispute about the existence or scope of the obligation" means the case where there are reasonable grounds for the obligor's argument as to the existence or scope of the obligation. Thus, the issue of whether it is not reasonable to dispute above is the fact-finding and evaluation of the court as to the case in question.

[1] Article 199 of the Civil Procedure Act, Article 105 of the Civil Act / [2] Article 3 of the Act on Special Cases concerning the Promotion, etc.

[1] Supreme Court Decision 95Da15827 delivered on June 30, 1995 (Gong1995Ha, 2576) / [2] Supreme Court en banc Decision 86Meu1876 delivered on May 26, 1987 (Gong1987, 1058), Supreme Court Decision 94Da56234 delivered on February 17, 1995 (Gong1995, 1420), Supreme Court Decision 94Da47728 delivered on March 24, 1995 (Gong195, 1731), Supreme Court Decision 96Da17202 delivered on July 14, 1998 (Gong198Ha, 2103)

Plaintiff (Counter-Defendant) 1 and one other (Attorney Park Im-soo et al., Counsel for the plaintiff-appellant)

Defendant-Counterclaim Plaintiff (Attorney Lee Young-young et al., Counsel for the defendant-Counterclaim plaintiff-appellant)

Supreme Court Decision 2001Da6053, 6060, 6077 Delivered on May 8, 2001

Seoul High Court Decision 2001Na3003, 30010, 30027 delivered on November 23, 2001

All appeals are dismissed. The costs of appeal are assessed against each party.

1. We examine the Plaintiff’s grounds of appeal (to the extent of supplement in case of supplemental appellate briefs not timely filed) (to the extent of supplement in case of supplemental appellate briefs not timely filed).

According to the records, the provisional execution on the counterclaim claim cited in the judgment of the court of first instance on January 14, 200, which was rejected by the plaintiff 1 at the appellate court, and the judgment of the court below prior to the remand on December 13, 200 was presumed to have been executed again on the same purport as the judgment of the court of first instance on the premise that the plaintiff's claim for counter-performance was partially accepted. The plaintiffs' appeal was filed on January 3, 200, and the decision of the court below prior to the remand on January 4, 200 that the plaintiff and the defendant did not reach an agreement on the transfer registration and payment of the remaining amount of the purchase and sale contract of this case on the ground that the remaining amount of the purchase and sale contract of this case violated the previous agreement on the transfer registration of ownership and the payment of the remaining amount of the purchase and sale contract of this case on January 5, 201, and the defendant did not have any specific method of returning the remaining amount of the sale and sale contract of this case to the court.

In the same purport, the court below's rejection of the plaintiffs' assertion on the agreement on the change of the remaining payment date or the termination of the claim for damages for delay is just (it seems that the original court's rejection of Gap's certificate No. 45 is erroneous, but it seems reasonable to have judged that "the remaining payment date was paid as the date the balance was actually paid for convenience," so such error does not affect the conclusion of the judgment), and there is no error in the misapprehension of legal principles as to the interpretation of the disposition document or the principle of good faith, as otherwise alleged in the ground of appeal.

The plaintiffs' grounds of appeal cannot be accepted.

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

Article 3(2) of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings (hereinafter “Special Cases Concerning the Promotion, etc.”) provides that “When it is deemed reasonable for an obligor to dispute the existence or scope of an obligation” means the time when there is a reasonable ground for the obligor’s argument as to the existence or scope of the obligation. Thus, the issue of whether it is unreasonable to dispute as above is the fact-finding and evaluation of the court as to the case in question (see Supreme Court en banc Decision 86Meu1876, May 26, 1987).

According to the records, the plaintiffs primarily filed a claim for the restoration of ownership based on the cancellation or cancellation of a sales contract, and the defendant filed a claim for the remainder payment based on the takeover of ownership transfer registration and the redemption of ownership transfer registration. The first instance court dismissed the plaintiffs' primary claim and accepted the defendant's claim for the counter-payment with the redemption of the remainder payment. The court below rejected this part of the claim on the ground that it cannot be deemed that the defendant's new claim for the delay payment due to extension of the claim for the remainder payment cannot be seen that the payment of the remainder payment was continued to be made due to the extension of the claim for the purchase and sale, and that the court below reversed this part of the claim and remanded it to the court below for the reason that there was no examination as to whether the defendant's payment of remainder was continued to be made at the court of final appeal. In light of the progress of the lawsuit in this case, the court below's determination that the plaintiffs' obligation to transfer ownership registration and the payment of remainder payment with the redemption relation were continuously disputed between the parties, and it is not clear that the plaintiffs were liable to pay the remainder payment without delay.

The defendant's ground of appeal cannot be accepted.

3. Conclusion

Therefore, all appeals are dismissed, and the costs of appeal are assessed against each party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Jin-hun (Presiding Justice)