면책확인의 소
1. The instant lawsuit shall be dismissed.
2. The costs of lawsuit shall be borne by the Plaintiff.
1. Basic facts
A. The Defendant had lent KRW 5,00,000 to the Plaintiff, but filed a lawsuit with the Seoul Northern District Court seeking payment of KRW 5,000,000 for the said loan, on the ground that the Plaintiff did not repay it. On March 22, 2011, the said court rendered a decision on performance recommendation (201No. 37125) stating that “The Plaintiff shall pay to the Defendant the amount equivalent to KRW 5,00,000 and the amount equivalent to KRW 20% per annum from the day after the copy of the complaint was served to the Defendant,” and the said decision was served on the Plaintiff on March 25, 201 and confirmed on April 9, 2011.
B. On August 30, 2013, the Plaintiff was granted decision to grant immunity (2013,4035, 2013Hadan4035) by the Seoul Central District Court.
(hereinafter referred to as “instant decision on immunity”). [Grounds for recognition] The fact that there is no dispute, Gap evidence No. 1, Gap evidence No. 5, and the purport of the whole pleadings.
2. The Plaintiff’s assertion was omitted in the list of creditors who hold claims based on the decision to grant immunity in the loan case No. 2011Gada37125 at the time when the Plaintiff received the instant decision to grant immunity, but did not intentionally omit the Defendant, and thus, the Plaintiff’s claim based on the decision to grant immunity has the effect of the instant decision to grant immunity.
3. We examine ex officio the legality of the instant lawsuit.
A. In a lawsuit for confirmation, there must be a benefit of confirmation as a requirement for the protection of rights, and the benefit of confirmation is recognized only when it is the most effective means to obtain a confirmation judgment against the defendant, in order to eliminate anxietys in the Plaintiff’s rights or legal status and in danger.
In addition, where a title exists, such as a claim based on a final decision of performance recommendation, the reason why a decision of immunity has become void as a matter of course is not the fact that there was a decision of immunity. However, this is merely an substantive reason to exclude the executive force of the executive titles through a lawsuit of objection.