청구이의
The instant lawsuit is dismissed.
Litigation costs shall be borne by the plaintiff.
Basic Facts
A. On April 26, 2019, the Defendant filed a lawsuit against the Plaintiff for claiming the return of down payment with the Jeju District Court (2019 Ghana63139) and received the judgment of the provisional execution declaration ordering that “the Plaintiff shall pay to the Defendant the amount calculated at the rate of KRW 5,832,00 and the interest rate of KRW 15% per annum from April 6, 2019 to the date of full payment” (hereinafter “instant judgment”).
B. On May 28, 2019, the Plaintiff filed a subsequent appeal against the instant judgment, and the said appellate court ( Jeju District Court 2019Na12473) is currently pending.
[Ground of recognition] A without dispute, significant facts in this court, entry of Gap evidence 1, purport of the whole pleadings
2. Determination ex officio as to the legitimacy of the instant lawsuit
A. On July 25, 2019, the Plaintiff asserted that KRW 5,832,00 and interest KRW 267,69,698 under the instant judgment were deposited to repay the principal and KRW 6,09,698, and that the obligation against the Defendant was extinguished, and thus, excluded the executory power of the instant judgment.
B. A judgment with a declaration of provisional execution cannot bring an objection to a claim unless the judgment becomes final and conclusive (see Article 44(1) of the Civil Execution Act). An obligor may, by appeal, exclude the executory power of the judgment by disputing the existence or scope of the claim and may be subject to a stay of execution.
(see, e.g., Supreme Court Decision 2013Da86403, Apr. 23, 2015). The fact that the Plaintiff filed an appeal for the subsequent completion of the instant judgment and is still pending in the appellate trial ( Jeju District Court 2019Na12473) is as seen earlier. As such, the instant lawsuit is unlawful as seeking the exclusion of its executive force by filing an objection against the judgment of the first instance court of the final and conclusive provisional execution sentence.
3. According to the conclusion, the instant lawsuit is dismissed as unlawful, and it is so decided as per Disposition.