[강제집행정지][공2003.11.15.(190),2145]
[1] Whether the application to suspend compulsory execution is legitimate in a case where a lawsuit of demurrer is not filed against compulsory execution based on a final and conclusive judgment or the name of debt with the same effect (negative)
[2] The case holding that the application for suspension of compulsory execution did not meet the requirements for suspension of execution under Article 46 (2) of the Civil Execution Act, in case where a lawsuit for confirmation of the existence of a shop lease contract was filed, not a lawsuit for objection against the execution of the order for cancellation of order based on the pre-litigation
[1] The suspension of compulsory execution based on a final and conclusive judgment or the name of debt with the same effect can only be permitted under the laws and regulations concerning the compulsory execution, and it is not permitted to suspend compulsory execution by means of a general provisional disposition without being subject to such provisions. Provisional disposition as to the compulsory execution under Article 46(2) of the Civil Execution Act requires that the claim is pending in the lawsuit, and the application for suspension of execution filed is unlawful, notwithstanding the lack of such requirements for suspension of execution.
[2] The case holding that the application for suspension of compulsory execution was not satisfied under Article 46 (2) of the Civil Execution Act, in case where a lawsuit for confirmation of the existence of a shop lease contract was filed with respect to the execution of the order for cancellation of order based on the protocol prior to the filing of a lawsuit
[1] Articles 46 and 300 of the Civil Execution Act / [2] Articles 46 and 300 of the Civil Execution Act
[1] Supreme Court Order 86Da76 dated May 30, 1986 (Gong1986, 867), Supreme Court Order 81Ma292 dated August 21, 1981 (No29-2, 280)
Central Automobile Market Co., Ltd. (Law Firm Han field, Attorneys Park Jong-young, Counsel for the plaintiff-appellant)
Daejeon District Court Order 2003Kaga1260 dated July 2, 2003
The order of the court below is reversed, and the case is remanded to Daejeon District Court Panel Division.
1. According to the records, upon the expiration of May 30, 2003 the lease agreement on the real estate between the applicant and the applicant, the special appellant entrusted the execution officer with the order of the real estate lease agreement of this case pursuant to the Daejeon District Court 99Hun-Ba15 protocol (the protocol prior to the lawsuit of this case). The applicant filed a lawsuit against the special appellant to confirm the existence of the shop lease agreement of this case as Daejeon District Court 2003Kahap5379, and filed an application for the suspension of compulsory execution of this case. The court below accepted the claim that the lease agreement of this case with respect to the real estate of this case was expired on May 30, 2003, but the lease agreement of this case was extended to five years if the applicant, the lessee, pays rent, deposit, monthly rent, etc. to the lessor until the expiration of 10% until the expiration of the lease agreement of this case, and thus, it can be accepted that the lease agreement of this case was extended to 30% until the expiration of the lease agreement of this case.
2. The suspension of compulsory execution based on a final and conclusive judgment or the name of debt with the same effect can only be permitted under the laws and regulations concerning compulsory execution, and it is not allowed to suspend compulsory execution by means of a general provisional disposition without being subject to such provisions (see Supreme Court Order 86Do76, May 30, 1986). The provisional disposition regarding compulsory execution under Article 46(2) of the Civil Execution Act requires that the lawsuit of objection is pending, and the application for suspension of execution, which was filed, is unlawful (see Supreme Court Order 81Ma292, August 21, 1981).
In light of the above legal principles, as long as the applicant has not yet filed an objection to the claim regarding the protocol prior to the filing of the instant lawsuit, even if the applicant filed a lawsuit for confirmation of the existence of the shop lease agreement as alleged in the claim, it shall be deemed that the applicant failed to meet the requirements for suspension of execution under Article 46(2) of the Civil Execution Act, and even if there is room to view that the lawsuit filed by the applicant is equivalent to the lawsuit for objection, there is no provision that the lease contract shall be extended for five years if the lessee pays the deposit, etc. to the lessor when the lease term expires, as alleged by the applicant, in the protocol or lease agreement prior to the filing of the instant lawsuit, and only there is a provision that "the lease contract may be extended for five years through mutual consultation" at the expiration of the lease term. Accordingly, the instant application cannot be deemed as a case where the grounds for objection by the applicant are deemed legally justifiable or there
Thus, although the application of this case does not meet the requirements for suspension of execution under Article 46 (2) of the Civil Execution Act, the court below erred by misapprehending the legal principles as to the suspension of execution.
3. Therefore, without further proceeding to decide on the remaining grounds of appeal, the order of the court below is reversed, and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Son Ji-yol (Presiding Justice)