[2] Where the contents of a final and conclusive judgment are contrary to the substantive legal relationship, the elements for compulsory execution based on the final and conclusive judgment to constitute abuse of rights and the burden of proving that compulsory execution based on the final and conclusive judgment is contrary to substantive legal relationship

A. A. There is no benefit to seek denial of compulsory execution by a lawsuit of demurrer after the creditor obtains satisfaction as a whole after the compulsory execution based on the executive title has been completed as a whole (see Supreme Court Decision 96Da52489, Apr. 25, 1997). An objection against the grant of execution clause may also be filed after the grant of execution clause, and there is no benefit to bring an action after the completion of compulsory execution (see Supreme Court Decision 2002Da64810, Feb. 14, 2003).

B. We examine ex officio the following facts: Gap evidence Nos. 80-1 through 9, Gap evidence No. 81-1 through 6, Gap evidence No. 82-84, Eul evidence No. 85-1 through Eul evidence No. 85-3, which was not lawfully adopted or rejected by the court below. According to the judgment of this case and the mediation protocol, the defendant can be found to have completed a part of compulsory execution, such as receiving the proceeds from the auction of movable properties owned by the plaintiff based on the judgment of this case and the mediation protocol, collecting a considerable amount after receiving the seizure and collection order for the plaintiff's claims. Further, the plaintiff and the defendant all of the judgment of the court of first instance except the part for which compulsory execution is denied in the judgment of this case and the mediation protocol of this case (the judgment of first instance became final and conclusive as it was by the defendant's failure to appeal against this case) by June 9, 2011.

As such, there is no interest in a lawsuit seeking the denial of compulsory execution with respect to the part on which compulsory execution is terminated, the lower court should have deliberated and confirmed the part on which compulsory execution according to the instant judgment and the protocol of mediation has already been terminated, and have tried and determined the propriety of the claim on the merits only with respect to the part on which compulsory execution has not yet been completed.

Nevertheless, the court below, without examining whether compulsory execution has been terminated or not, determined on the merits as it is. Such judgment of the court below is erroneous in the misapprehension of legal principles as to the interest of a lawsuit and failing to exhaust all necessary deliberations in a lawsuit for objection to a claim objection and a lawsuit for objection to grant of execution clause.

2. As to the grounds of appeal (to the extent of supplement in case of any statement in the reference documents submitted after the expiration of the submission period)

A. Even if a right is based on a final and conclusive judgment, it shall be exercised in good faith and it shall not be permitted in cases where enforcement based on the judgment becomes an abuse of rights. Thus, if the contents of the final and conclusive judgment are contrary to substantive legal relations, the enforcement defendant can seek exclusion from the enforcement by a lawsuit for objection. In full view of all the circumstances such as the nature and contents of the right which can be executed by the judgment, circumstances leading up to the establishment and execution of the judgment, and impact on the parties, etc., the execution of the final and conclusive judgment shall not be allowed as an abuse of rights in cases where it is deemed that the execution based on the final and conclusive judgment is considerably improper and it is clearly against the justice that allowing the other party to execute the final and conclusive judgment is clearly unreasonable and that it is impossible to allow the other party to execute the final and conclusive judgment (see Supreme Court Decision 9Da32899, Nov. 13, 2001; Supreme Court Decision 2006Da327147, Jul. 27, 2006). 206.

B. According to the reasoning of the judgment below, the court below acknowledged that the judgment of this case and the mediation protocol of this case allow the plaintiff to peruse and copy the plaintiff's money delivery, transportation receipt book, vehicle maintenance day, assistant book, wage ledger, balance sheet, profit and loss statement, daily table, and documents listed in the annexed list, and ordered the plaintiff to pay indirect compulsory performance if they violate this, and that the defendant was granted the execution clause against the judgment of this case and the mediation protocol of this case, and determined that the court below rejected the judgment of this case based on the premise that there was abuse of rights by considering the following facts: with regard to the payment of money, assistant book, and deposit slip against the plaintiff which the plaintiff did not exist among the documents ordering the permission for perusal and copy in the judgment of this case and the mediation protocol of this case, among the documents ordering the permission for perusal and copy, the court below held that it is not sufficient to acknowledge this by the evidence submitted by the defendant, on the other hand, each evidence presented by the defendant is insufficient to acknowledge this, and that there was no possibility of allowing the plaintiff to peruse and copy of the execution clause of this case.

C. However, we cannot accept the judgment of the court below in light of the above legal principles and records.

As long as the Plaintiff asserts that the content of the final and conclusive judgment and the protocol of mediation with the same effect are contrary to the substantive legal relationship and compulsory execution based thereon becomes an abuse of rights, the Plaintiff cannot be deemed to have fulfilled the burden of proof of the above fact, solely on the fact that the content of the instant judgment and protocol of mediation is contrary to the substantive legal relationship, i.e., the Plaintiff is responsible for proving the fact that there is no document ordering the perusal and copy in the instant judgment and protocol of mediation, and that it is difficult to deny the probability that the said

Nevertheless, the lower court determined that the instant judgment and the content of the conciliation protocol are inconsistent with the substantive legal relationship, on the premise that the Defendant was responsible for proving the existence of the document ordering perusal and copy in the instant judgment and the conciliation protocol, on the premise that it was not proven by the Defendant, while considering the evidence submitted by the Plaintiff, it is difficult to deny the probability that the said document does not actually exist. In so doing, the lower court erred by misapprehending the legal doctrine on the abuse of rights and the burden of proof based on the final judgment, or by failing to exhaust

3. Conclusion

Therefore, the part of the judgment below against the defendant is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jo Hee-de (Presiding Justice)