[청구이의사건][하집1985(4),264]
Whether the final decision to grant permission for auction in the real estate compulsory auction case is a reason to reject a lawsuit of objection against the title of debt.
Even if a decision to grant permission for an individual compulsory auction based on the name of debt has already become final and conclusive, if the compulsory execution based on the above name of debt has already been completed and the creditor has not obtained the complete satisfaction of the basic right in the name of debt, then the debtor has a benefit to seek the exclusion of the executory power of the name of debt.
Article 505 of the Civil Procedure Act
Supreme Court Decision 66Da2638 delivered on April 23, 1968 (Article 487(17)8 of the Civil Procedure Act), Decision 64Da886 delivered on January 26, 1965 (Article 505(8)86 of the Civil Procedure Act), Decision 66Da2638 delivered on April 23, 1968 (Article 487(17)81 of the Civil Act), Decision 79Da563 delivered on June 26, 1979 (Article 505(24) of the Civil Procedure Act)
Plaintiff 1 and one other
Seoul Mutual Savings Bank
The compulsory execution based on the authentic copy of No. 13160, No. 13160 of the 83-year deed of preparation of Kim Chang-soo, which belongs to the Cheongju District Public Prosecutor's Office against the plaintiffs
The decision of the suspension of compulsory execution made on October 10, 1985 by the principal member of the above parties to the case of the suspension of compulsory execution 85Ka2095 shall be approved.
Litigation costs shall be borne by the defendant.
Paragraph (2) may be provisionally executed.
It is as set out in paragraphs 1 and 3 of this Decree.
The plaintiffs, when they borrowed 3,00,000 won from the defendant around August 1984 with interest rate of 2% per month, and the time and method of return agreed to repay the principal and interest in equal installments for 35 months, they prepared a notarial deed such as an order dog to accept compulsory execution at the time of default. The plaintiffs' non-party' non-party's non-performance of obligation as to the above non-party's non-party's non-performance of obligation as to the non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's 1's non-party's non-party's non-party's non-party's right of obligation.
The defendant argued to the effect that the objection of this case cannot be permitted since the decision of permission of auction was already made on October 4, 1985 with respect to the compulsory auction case of the above real estate owned by the plaintiffs 85ta1242 above as to the above real estate, and the objection of this case became final and conclusive on October 1, 1985. However, in the case of seeking the exclusion of enforcement power on the ground of the extinguishment of the claim based on the basic title of debt, even though the decision of permission of auction has already been made on the ground of the extinguishment of the claim based on the title of debt, if the compulsory execution as a whole based on the title of debt has already been completed and the creditor has already obtained the complete satisfaction of the basic rights of the title of debt, the defendant's interest to seek the exclusion of enforcement power of the title of debt from the debtor (where the creditor commences a new compulsory auction due to the lack of complete satisfaction of rights in individual compulsory auction case, the plaintiff's assertion that the claim of this case cannot be excluded in the procedure of auction or re-auction can be excluded.
Therefore, the plaintiffs' claims seeking the exclusion of executive force on the grounds of the extinguishment of the claim based on the above title of debt are justified, and litigation costs are assessed against the defendant who has lost, and with respect to the approval of the decision of suspension of enforcement and the declaration of provisional execution, it is so decided as per Disposition by the application of Article 508 (1) and (2) of the Civil Procedure Act.
Judges Kim Young-soo