2017Da201255 Objection

1. A;

2. B

C

Changwon District Court Decision 2016Na55725 Decided December 21, 2016

May 11, 2017

The judgment of the court below is reversed, and the case is remanded to the Changwon District Court Panel Division.

The grounds of appeal are examined.

1. Review of the records, including the duly admitted evidence, reveals the following facts.

A. The Defendant filed a lawsuit against the Plaintiffs and D on April 201 against the Defendant for a loan claim of 11678 group. The above court rendered a judgment against the Defendant on April 20, 201, stating that ① Plaintiff B and D jointly and severally, KRW 20 million, ② Plaintiff A and D jointly and severally, KRW 10 million, ③ KRW 20 million, and KRW 20 million from August 31, 2006 to June 29, 2007, and KRW 36% per annum from the next day to June 29, 2007; and KRW 30% per annum from the next day to the day of full payment. The above judgment became final and conclusive (hereinafter referred to as “instant enforcement title”).

B. On May 18, 2012, the defendant, D, and E, the creditor of the defendant, agreed on the debt of this case 50 million won under the executive title of this case, and ② due to the payment method thereof, D shall pay 50 million won out of the debt of the defendant to E, and ③ for this purpose, the defendant shall transfer the debt of 50 million won against D to E in lieu of the defendant's repayment of debt to E, and D shall accept it, ④ The remaining debt of 49 million won between the defendant and D shall not exist, and D shall not have any debt of 250 million won against the logical and empirical rules of 205.25 billion won, and D shall not have any error of 25.25 billion won out of the evidence adopted under the agreement of this case.

3. A. In the instant case where there was no agreement between the Defendant and D on the repayment of any obligation among the obligations under the instant executive title, or there was no proof on the existence of an expression of intent to designate an appropriation of obligation, the amount paid by D to E under the instant agreement shall be appropriated by means of statutory appropriation of obligation under Article 477 or 479 of the Civil Act. Such statutory appropriation of obligation shall be made in the order of interest and principal, and payment of obligation shall be made in the order of interest and principal, and the interest shall be made in the order of the due date, the time when the due date comes, and the amount of payment shall be made in the order of priority according to the difference between the interest and the principal, the time when the due date comes, and the interest shall be made in the order of priority in proportion to each interest (see, e.g., Supreme Court Decision 200Da51339, Dec. 8, 200).

B. Since each of the interests of the respective obligations borne by the Defendant, the same obligee, under the executive title of this case, are not different in terms of the due date or the amount of repayment profit, it shall be divided in proportion to each of the obligations, and as a result, it can be seen that each of the obligations of the Plaintiffs under the executive title of this case has been partially extinguished.

C. In addition, even if the claim indicated in the executive title is not completely extinguished, if a part of the claim is extinguished by performance, there is no reason to permit compulsory execution by maintaining executive force (see Supreme Court Decision 67Da2249, Dec. 26, 1967). The lower court’s rejection of the Plaintiffs’ assertion that “Inasmuch as D actually performs its obligation under the instant agreement,” the obligation under the instant executive title was extinguished, it would be erroneous by misapprehending the legal doctrine on repayment, thereby failing to exhaust all necessary deliberations.

4. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim In-bok

Justices Kim Yong-deok

Justices Kim Gin-young

Chief Justice Lee Dong-won