(영문) 서울중앙지방법원 2015.09.22 2014가합56305

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(영문) 서울중앙지방법원 2015.09.22 2014가합56305

부당이득금반환

Text

1. The Defendant’s KRW 5,173,781,073 to the Plaintiff and KRW 5% per annum from August 31, 2013 to November 25, 2014 to the Plaintiff.

Reasons

1. Facts of recognition;

A. The judgment of the provisional execution sentence (Seoul Central District Court 201Ga62177, hereinafter “the judgment of the first instance judgment”) stating that “the Plaintiff shall pay to the Defendant 4,559,222,820 won, and 5% per annum from January 31, 2011 to August 16, 2013, and 20% per annum from the next day to the day of full payment” was pronounced on August 16, 2013.

B. On August 30, 2013, the Plaintiff paid KRW 5,173,781,073 to the Defendant totaling the principal and interest up to that time pursuant to the above judgment.

C. The Plaintiff appealed against the judgment of the first instance court of this case.

(Seoul High Court Decision 2013Na57933). On October 16, 2014, the above court revoked the part against the plaintiff in the judgment of the first instance of this case and rendered a judgment dismissing the defendant's claim corresponding to that part.

[Ground for Recognition] Unsatisfy, Gap evidence 1 to 3

2. Determination:

(a)the effect of enforcement based on the judgment of the sentence of provisional execution is not final and conclusive, and it is a condition subsequent to the Appellate Court that the sentence of the merits or provisional execution will be cancelled or changed;

In other words, even if the execution was made by the declaration of provisional execution, if the part or whole of the previous judgment becomes invalid, it shall become definite that it cannot be executed by the previous judgment of the declaration of provisional execution.

In addition, if the judgment on the merits is changed later in the appellate court, the provisional execution creditor is liable to return the goods received by the declaration of provisional execution, and to compensate for the damages incurred by the provisional execution or for the exemption thereof.

However, the obligation of restitution and compensation for damages come from the concept of fairness to restore to the same original state as the one in which no provisional execution had been executed, barring special circumstances, the creditor of provisional execution has paid the money paid and the money paid to him/her.

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