면책확인
1. Revocation of a judgment of the first instance;
2. The instant lawsuit shall be dismissed.
3. All costs of the lawsuit shall be borne by the Plaintiff.
1. Facts of recognition;
A. On April 7, 1995, the defendant lent the plaintiff 10 million won to C as joint and several sureties but was not repaid. On April 21, 2005, the defendant filed a lawsuit against the plaintiff and C for a loan claim of KRW 10 million. The Daegu District Court Decision 2005Da694 decided that "the defendant jointly and severally pays to the creditor the amount of KRW 10 million and the amount calculated at the rate of KRW 30% per annum from April 7, 1995 to the date of full payment." The above decision on performance recommendation was served on the plaintiff on April 25, 2005 and confirmed on May 10, 2005.
B. The Plaintiff filed an application for bankruptcy and immunity with the Daegu District Court No. 2008Hadan2910, 2008Ma2910, Nov. 14, 2008 (hereinafter “instant immunity”). The decision to grant immunity was made on December 2, 2008, and the above immunity became final and conclusive on December 2, 2008. At the time of the instant immunity exemption, the Defendant’s claim against the Plaintiff was not stated in the creditor list.
C. On May 7, 2015, the Defendant applied for a compulsory auction of real estate to Daegu District Court D based on the executory exemplification of a decision on performance recommendation with the executory power in the loan case, Cheongdo-gun District Court 2005Gau694, Cheongdo-gun, Cheongdo-gun, Cheonggu
[Reasons for Recognition] Unsatisfy, Gap evidence Nos. 1, 2, 4, 7, Eul evidence Nos. 1, 2 and 4, the purport of the whole pleadings
2. We examine whether the lawsuit of this case is lawful ex officio.
In a lawsuit for confirmation of rights, there must be a benefit of confirmation as a requirement for protection of rights. The benefit of confirmation is recognized in cases where there is a dispute between the parties as to the legal relationship subject to confirmation, and thereby, when there is apprehension or risk of the Plaintiff’s rights or legal status, obtaining a judgment of confirmation is the most effective and appropriate means to eliminate such apprehension or risk (see, e.g., Supreme Court Decision 2014Da218511, Dec. 11, 2014). Joint and Several sureties claims of this case are based on the final decision