(영문) 서울서부지방법원 2017.07.20 2016가합37358

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Reasons

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자간(%)

(영문) 서울서부지방법원 2017.07.20 2016가합37358

부당이득금

Text

1. The Defendant’s KRW 18,754,836 as well as KRW 94,209 as to the Plaintiff’s KRW 5% per annum from January 26, 2016 to July 20, 2017.

Reasons

1. Facts of recognition;

A. On January 13, 2016, the Defendant filed a lawsuit seeking damages against the Plaintiff (Seoul Central District Court 201Gahap10949), and rendered a judgment with a provisional execution panel (hereinafter “instant judgment”) stating that “the Defendant (the Plaintiff of this case) shall pay 606,53,459 won to the Plaintiff (the Defendant of this case) and 5% per annum from December 7, 2010 to November 3, 2011; 20% per annum from the next day to September 30, 2015; and 15% per annum from the next day to the day of full payment.” The Plaintiff paid 1,137,541,039 won to the Defendant of the said judgment on January 25, 2016.

B. On September 23, 2016, the appellate court of the said lawsuit (Seoul High Court 2016Na2017475) accepted part of the Plaintiff’s appeal on September 23, 2016, and sentenced the said judgment to revoke the part ordering payment of KRW 606,53,459 among the said judgment of the first instance, and the amount of KRW 5% per annum from December 7, 2010 to January 13, 2016, and the amount of KRW 15% per annum from the next day to the date of full payment (hereinafter “instant appellate judgment”), and the said judgment became final and conclusive on January 18, 2017.

[Ground of recognition] Facts without dispute, entry of Gap evidence 1 to 6, purport of the whole pleadings

2. The effect of enforcement based on the judgment of the judgment of the provisional execution sentence on the cause of the claim is not conclusive, but on the condition of cancellation or change of the judgment on the merits or the provisional execution declaration at the later appellate court.

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, this is the case.

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