면책확인
1. The instant lawsuit shall be dismissed.
2. The costs of lawsuit shall be borne by the Plaintiff.
A lawsuit for confirmation requires the benefit of confirmation as a requirement for the protection of rights, and the benefit of confirmation is recognized when a judgment of confirmation is the most effective and appropriate means to remove the Plaintiff’s right or the risk of ineviation existing in the legal status (see, e.g., Supreme Court Decision 2014Da208255, Mar. 15, 2017). Notwithstanding the confirmation of immunity against the bankrupt debtor, where a claim is disputed as to what claim constitutes a non-exempt claim, the obligor may, by filing a lawsuit for confirmation of immunity, eliminate the risks existing in his/her right or legal status.
However, in relation to the creditor who has executive title with respect to the exempted obligation, the debtor's filing of a lawsuit of demurrer against the claim and seeking the exclusion of executory power based on the effect of the discharge becomes an effective and appropriate means to remove the danger in the legal status.
Therefore, even in such cases, seeking the confirmation of immunity is unlawful because it is not a final resolution of dispute, and there is no benefit of confirmation.
(see, e.g., Supreme Court Decision 2017Da17771, Oct. 12, 2017). Since the existence of benefit in confirmation in a lawsuit for confirmation is a matter of ex officio examination, the court, regardless of the party’s assertion, should make ex officio determination.
(See Supreme Court Decision 2005Da60239 Decided March 9, 2006, etc.). The instant lawsuit was brought by the Plaintiff for the purpose of preventing the compulsory execution procedure by obtaining confirmation that the assignee-paid claim based on the Defendant’s final and conclusive judgment (Seoul East District Court Decision 2012DaDa2226762) is an exemption claim. The most effective and appropriate means to prevent compulsory execution procedure is to file a lawsuit of demurrer, and the confirmation of exemption cannot be excluded from the executory power of the said final and conclusive judgment, and thus the risk of being forced to enforce compulsory execution is not still removed from the Defendant. Therefore, the instant lawsuit is the benefit of confirmation.