(영문) 부산지방법원 2019.07.12 2018나60755

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(영문) 부산지방법원 2019.07.12 2018나60755

부당이득금

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1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the Plaintiff.

3. Disposition of the first instance judgment No. 1-B.

Reasons

1. The reasoning for the court’s explanation as to the instant case is as follows: “On May 25, 2018, the Plaintiff sought from May 25, 2018 to the day on which the Defendant loses possession of the right road or the Plaintiff loses its ownership on the road from May 25, 2018, from May 25, 2018 to the day on which the Defendant loses its possession,” the court’s explanation as to the instant case is stated in the reasoning of the judgment of the first instance, except for an addition of the judgment as to the defense added by the Defendant in the trial to the following paragraph (2). Thus, it is cited as it is in accordance with the main sentence of Article 420 of the Civil Procedure Act.

2. The Defendant asserts to the effect that on January 14, 2019, after the judgment of the court of first instance was rendered, the Defendant paid to the Plaintiff the sum of KRW 17,391,480, the principal and interest up to the date specified in the order of the judgment of first instance, and repaid the aforementioned portion of unjust enrichment.

On the other hand, the effect of the repayment due to the provisional execution is not conclusive, but is only derived from the declaration of the provisional execution or the cancellation of the judgment on the merits in the appellate court. Therefore, according to the judgment of the first instance court, the defendant paid the amount of the provisional execution.

Even if the appellate court does not take this into account, it is necessary to determine the legitimacy of the claim.

In addition, in cases where the defendant deposited the amount of judgment after the judgment of the first instance court was rendered, and the plaintiff received it, even though the amount was in the form of a deposit for repayment, it shall be deemed that the defendant deposited the amount to be exempted from compulsory execution based on the provisional execution attached to the judgment of the first instance, which was established by the judgment of the court of first instance, and it shall not be deemed that the defendant voluntarily provided the amount of the debt to the plaintiff, while the defendant voluntarily provided the payment to the plaintiff, but it shall not be deemed that the plaintiff received the deposit

참조조문

-민사소송법 제420조

유사 판례

-광주지방법원 2018.08.31 2017나64575

-창원지방법원 2019.05.24 2018나62055

-서울고등법원 2017.02.10 2016나2062956

-서울고등법원 2017.04.13 2016나2016038

-대법원 1994. 11. 11. 선고 94다22446 판결