Supreme Court Decision 2026Da202771, August 13, 2026 [Damages (Etc.)]

【Holding】

[1] Meaning of "goods paid pursuant to a declaration of provisional execution," which Article 215(2) of the Civil Procedure Act prescribes as the object of restoration to the original state, and whether payment of money for which provisional execution was not declared in the first instance judgment is included therein (negative)

[2] In a case where the plaintiff filed a suit seeking damages against defendants A, B, et al., and after a judgment partially in favor of the plaintiff with a declaration of provisional execution was rendered in the first instance, defendant A paid the plaintiff damages pursuant to the judgment, which money also included an amount paid by subrogation on behalf of defendant B, who was in a relationship of non-genuine joint and several liability with defendant A, and thereafter the lower court, while partially revoking the portion against defendant A, ordered the plaintiff, for the return of the provisional payment, to pay the amount obtained by deducting from the amount paid by defendant A the reduced damages that defendant A was to pay under the lower court judgment, the Court held that the portion of the money paid by defendant A constituting the amount paid by subrogation appears to have been voluntarily paid rather than paid pursuant to the declaration of provisional execution, and that the lower court erred in its misapprehension of legal principles, etc. by entirely failing to consider the deduction of the amount paid by subrogation in calculating the provisional payment that the plaintiff must return to defendant A

【Summary of Decision】

[1] "Goods paid pursuant to a declaration of provisional execution," which Article 215(2) of the Civil Procedure Act prescribes as the object of restoration to the original state, means only goods delivered by the defendant to the plaintiff as a result of provisional execution, and payment of money for which provisional execution was not declared in the first instance judgment should be regarded as having been voluntarily paid rather than paid pursuant to a declaration of provisional execution.

[2] In a case where the plaintiff filed a suit seeking damages against defendants A, B, et al., and after a judgment partially in favor of the plaintiff with a declaration of provisional execution was rendered in the first instance, defendant A paid the plaintiff damages pursuant to the judgment, which money also included an amount paid by subrogation on behalf of defendant B, who was in a relationship of non-genuine joint and several liability with defendant A, and thereafter the lower court, while partially revoking the portion against defendant A, ordered the plaintiff, for the return of the provisional payment, to pay the amount obtained by deducting from the amount paid by defendant A the reduced damages that defendant A was to pay under the lower court judgment, the Court held that the portion of the money paid by defendant A to the plaintiff constituting the amount paid by subrogation on behalf of defendant B appears to have been voluntarily paid rather than paid pursuant to the declaration of provisional execution against defendant A in the first instance judgment, and that the lower court erred in its misapprehension of legal principles, etc. by entirely failing to consider the deduction of the amount paid by subrogation in calculating the provisional payment that the plaintiff must return to defendant A.

【Referenced Statutes】

[1] Article 215(2) of the Civil Procedure Act [2] Article 215(2) of the Civil Procedure Act

【Referenced Precedents】

[1] Supreme Court Decision 65Da1311, 1312, August 31, 1965 (Jip13-2, Civ. 116)

Supreme Court Decision 77Da402, 403, June 28, 1977

Supreme Court Decision 2002Da40098, 40104, October 11, 2002

(Source: Supreme Court Decision 2026Da202771, August 13, 2026 | Judicial Information Disclosure Portal, Supreme Court of Korea)

2026. 10. 26. · By Attorney Dongwoo Shin