[부동산강제경매신청취하청구사건][고집1968민,4]
Whether a modification of the purport of the claim to implement the procedure for withdrawal of the application for compulsory auction to a third party constitutes a case where the basis of the claim is modified.
The Supreme Court's decision that the purport of the claim to implement the procedure for withdrawal of the application for compulsory auction against the real estate on the attached list cannot be conducted, which is the principle of public law, has been remanded to the court after it was remanded, and the purport of the claim has been modified by the lawsuit against the third party, and thus, it cannot be said that there is a change in the basis of the claim or late at the time, and it cannot be said that
Article 235 of the Civil Procedure Act
Plaintiff
Defendant
Busan District Court Msan Branch Court (65A503)
The judgment below is modified as follows.
The compulsory execution between the defendant and the non-party 1, 2, 3 and the non-party 4, based on the executory exemplification of the judgment in the damages claim case No. 431 of Busan District Court in 1958, which is based on the executory exemplification of the judgment in the attached list, shall be dismissed.
All the costs of lawsuit shall be borne by the defendant in the first and second instances.
The defendant's appeal is dismissed.
The plaintiff is seeking a judgment to the same effect as the disposition Nos. 2 and 3 (2). (3)
The judgment of the court below shall be revoked.
The plaintiff's claim is dismissed.
All court costs are assessed against the plaintiff in the first and second instances.
First, the defendant's defense as to the amendment of the purport of the claim is examined, and the plaintiff first made a judgment to the effect that the defendant shall comply with the procedure for the withdrawal of the application for compulsory auction against the real estate recorded in the separate sheet (hereinafter "the real estate in this case") among the cases of application for compulsory auction against Busan District Court Masan Branch 63l214, but the defendant's amendment of the claim is not permitted because it has been changed on the basis of the claim and is delayed at the time, and it is obvious to delay the litigation procedure. However, the purport of the claim before and after the amendment is different from social or living relations, and it is because the purport of the claim before and after the amendment is different from the purport of the purport of the claim before and after the amendment, the plaintiff's attempt to prevent the continuation of compulsory auction against the real estate in this case is identical to that of the defendant's claim, but it is nothing more than the plaintiff and its designated person's assertion that the claim before the amendment acquired ownership of each real estate in this case. Thus, it cannot be deemed that the above amendment of the plaintiff's defense is justified.
In addition, when the defendant files a lawsuit of demurrer against a third party, as in this case, if the plaintiff and its founders are unable to file a lawsuit of demurrer against a third party, the debtor, etc. of compulsory execution should also file a lawsuit of demurrer against a third party without recognizing that the third party's objection is justifiable, but the plaintiff and the debtor should also be jointly the defendant, and in this case, there is no evidence to prove that the debtor, who is subject to compulsory execution, files a lawsuit of objection against the plaintiff, etc., and in this case, there is no evidence to prove that the debtor has raised an objection against the plaintiff, etc., and in a case where the debtor files a lawsuit of objection against the creditor and the debtor, it is merely an ordinary co-litigation and cannot be deemed a necessary co-litigation. Therefore, the plaintiff may file a lawsuit of objection against the creditor and the debtor as a co-defendant, and only the defendant who is the creditor may file a lawsuit of
In light of the above facts, since the plaintiff and its designated parties purchased each of the above 5 shares of the real estate and cultivated it as stated in the separate sheet, 1960, and the non-party 5 inherited the above real estate as non-party 1, 2, 3, and 3 other than the non-party 4, and the defendant applied for a compulsory auction on November 8, 1963 with the above non-party 1, 2, 3, and 4's share in the above non-party 4's share in the above real estate for the collection of the claim, and the above non-party 1 and the above 60's remaining amount can be acknowledged as non-party 1's remaining amount's remaining amount's remaining amount's remaining amount's remaining amount' 9's remaining amount's remaining amount' 9's remaining amount' 60's remaining amount' 1,000,0000 won can be acknowledged as non-party 1's remaining amount's remaining amount' 16's remaining amount'6'
As above, even if the plaintiff and its designated parties purchased each parcel of land and completed the registration of ownership transfer during the compulsory auction as above, the defendant shall be deemed to have approved the acquisition of ownership on the part of the plaintiff and its designated parties by concluding that the above settlement contract was completed, and it is presumed that there was proof of the local government office with regard to the sale with the non-party 5 of the plaintiff's designated parties, etc. purchased each parcel of land on October 20, 1950, and the plaintiff and its designated parties purchased each parcel of land as above and again acquired the ownership on the above registration date, and they may oppose the defendant.
Thus, for the execution of claims against the defendant against the non-party 1, 2, 3 and 4, compulsory execution against the plaintiff et al.'s main claim against the plaintiff et al. is unjustifiable. Thus, the plaintiff's main claim against the plaintiff et al. against the non-party 1 is justified and quoted. The judgment of the court below is modified as the purport of the claim is not consistent with this, and the defendant's appeal is eventually null and void. Thus, it is dismissed pursuant to Article 384 of the Civil Procedure Act, and it is so decided as per Disposition by applying Articles 96 and 89.
[Attachment List omitted]
Judges Doh-ho (Presiding Judge)