Effect of payment by judgment with a declaration of provisional execution

The effect of performance by provisional execution is not final and conclusive, but is only derived from the condition that the declaration of provisional execution or the judgment on the merits be cancelled in the appellate court. Therefore, even if the defendant paid the amount of provisional execution according to the judgment on the sentence of provisional execution in the first instance, the appellate court should decide the propriety of the claim without considering it.

Article 199 of the Civil Procedure Act, Article 460 of the Civil Act

Supreme Court Decision 80Da1101,102 delivered on December 14, 1982 (Gong1983,265) 90Meu26,33 delivered on May 22, 1990 (Gong1990,1369) (Gong1369) 93Da14233 delivered on June 8, 1993 (Gong193Ha,206)

Plaintiff (Counterclaim Defendant)

Defendant-Counterclaim Plaintiff (Attorney Hong Hong-soo et al., Counsel for the defendant-Counterclaim Plaintiff)

Supreme Court Decision 91Da45547, 45554 Decided February 25, 1992 (Counterclaim)

Seoul High Court Decision 92Na17510, 17527 decided April 28, 1993 (Counterclaim)

The appeal is dismissed.

The costs of appeal are assessed against the Defendant (Counterclaim Plaintiff).

The grounds of appeal No. 1 are examined.

The court below, based on its evidences, acknowledged that the plaintiff completed a new construction work of the third floor building that was decided by the defendant and delivered it to the defendant, and completed the construction work under an additional agreement with the defendant's request to convert a part of the office of the above building into a room for the construction cost of 2.1 million won. In light of the records, the above fact-finding by the court below is justified and it cannot be said that there are any errors such as the theory of lawsuit. The theory of lawsuit is nothing more than seeking the fact-finding by the court below in accordance with the purport of the judgment of remanding, and thus, it cannot be accepted.

The grounds of appeal No. 2 are examined.

The reasoning of the judgment below is examined in light of the records. The court below held that the defendant's repair of part of the building caused by the above building after the delivery of the above building was 3,182,00 won at its expense. The defect repair part is mainly related to waterproof construction of the wall, drawing and painting construction, and thus, it is necessary to repair the building again due to the reason that the appropriate repair is not performed. Thus, the above construction cost disbursement part goes beyond reasonable scope and is therefore exceeding the scope of the plaintiff's compensation for damages. Thus, the court below's determination that the above construction cost disbursement part exceeds the plaintiff's cost of repairing the defect related to the above construction of the building, and there is no error of law of pointing out

The ground of appeal No. 3 is examined.

The effect of repayment due to provisional execution is not conclusive, but is only the result of the cancellation condition for the declaration of provisional execution or the cancellation of the judgment on the merits at the appellate court. Thus, even if the defendant paid the amount of provisional execution according to the judgment of the court of first instance, the appellate court should decide the validity of the claim without considering it (see Supreme Court Decision 90Meu26, 33 delivered on May 22, 1990).

Therefore, the court below is just in determining the scope of accepting the plaintiff's claim on the premise that the defendant's deposit for repayment was not taken into account at all according to the judgment of the court of first instance, and there is no violation of law such as the theory of lawsuit. This is without merit.

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

Justices Park Jong-ho (Presiding Justice)