[2] The case holding that Byung company cannot be deemed as the successor of the debtor Gap company based on the Notarial Deed in a case where Gap limited liability company prepared a quasi-loan No. 1 to which the purpose of recognizing compulsory execution was included in Eul limited liability company, and Byung limited liability company merged Gap company and completed the registration thereof, Eul company was granted a succession execution clause to conduct compulsory execution against Byung company with respect to No. 1, and the judgment of invalidation of merger became final and conclusive before the succession execution clause was granted

Therefore, in a lawsuit of demurrer against the grant of the succession execution clause, the court should cancel the succession execution clause and refuse the compulsory execution based on the succession execution clause in a case where the fact of fact is not sufficiently proven or where the objection against the succession is proved, after examining whether there was a substantive and legal succession with respect to the party indicated on the enforcement title.

[2] The case holding that the judgment of the court below did not err in the misapprehension of legal principles as to the invalidity of a merger execution clause, since the judgment of invalidation of a merger is affirmed on the ground that the judgment of invalidation of a merger has become final and conclusive due to the following reasons: (a) Company A prepared a quasi-loan for consumption including the purpose of recognizing a compulsory execution clause to Company B with Company B; (b) Company C merged Company A with Company B until its registration was completed; and (c) Company B obtained a succession execution clause to enforce compulsory execution against Company C with respect to the notarial deed; and (b) the judgment of invalidation of a merger with Company C before a succession execution clause was granted; (b) Company C did not have any influence on the registration of invalidation of a merger with Company C in a lawsuit for invalidation of a merger with respect to the grant of a succession execution clause; (c) Company C did not have any effect on the registration of invalidation of a merger with respect to the general public at the time of determining the existence of a merger with respect to the grant of a lawsuit for invalidation of a merger execution clause.

1. According to the reasoning of the judgment below, the court below rejected the Plaintiff’s assertion that the Plaintiff was not in the position of the Plaintiff on the ground that the Plaintiff did not assert the Plaintiff’s obligation as to the instant notarial deed on the ground that: (a) the Plaintiff’s merger and completion of the registration was granted an execution clause to implement compulsory execution against the Plaintiff with respect to the instant notarial deed; (b) the judgment of invalidation of the merger becomes final and conclusive before the transfer execution clause is granted; and (c) the registration becomes final and conclusive under the Commercial Act provides that the registration shall be made if the judgment of invalidation of the merger becomes final and conclusive; and (d) the matters to be registered shall not be asserted against a third party in good faith unless the registration becomes final and conclusive even at the time of granting the execution clause; and (e) the registration registration of invalidation by the judgment of invalidation of the merger was not completed, and as long as the Defendant’s bad faith or gross negligence was not asserted or proven by gross negligence; and (e) the Plaintiff did not assert the Plaintiff’s obligation against the Defendant.

2. However, it is difficult to accept the above determination by the court below for the following reasons.

When a debtor's succession indicated in a judgment is clearly known to the court or proves by means of a certificate, an execution clause may be granted in accordance with the order of the presiding judge for the execution against the debtor's successor (Articles 31 and 32 of the Civil Execution Act). The requirements for granting such succession execution clause are whether there is a substantive legal succession with respect to the party indicated in the execution title. Where the debtor contests against the denial of succession to the status of the debtor, a lawsuit for objection against the grant of the succession execution clause may be brought (Article 45 of the Civil Execution Act). In such cases, the burden of proof as to the succession is borne by the creditor who asserts succession (see Supreme Court Decision 2012Da1630, Jan. 29, 2015).

Therefore, in a lawsuit of demurrer against the grant of the succession execution clause, the court should cancel the succession execution clause and refuse the compulsory execution based on the execution clause in the case where the fact of succession is not sufficiently proven or where the objection against the succession is proved, after examining the evidence relations in the lawsuit of objection against the grant of the succession execution clause.

In light of the above legal principles, the existence of succession in the lawsuit of objection against the grant of the instant succeeding execution clause depends on the existence of a merger between the Plaintiff and the Minep City. However, as recognized by the court below, the Plaintiff has merged the Minep and completed the registration of a merger, but the judgment of invalidation of a merger with respect to a third party who is not the judgment party pursuant to Articles 240 and 190 of the Commercial Act became final and conclusive with respect to the said merger, the Plaintiff cannot be deemed a successor of the obligor Minep-si based on the instant authentic deed on the premise of the fact of the merger. In the lawsuit of objection against the grant of the succeeding execution clause, the issue of whether the registration of invalidation of a merger for the public disclosure of the above merger has been completed is not affected.

Nevertheless, the lower court dismissed the Plaintiff’s claim on the grounds that the Plaintiff did not assert the invalidity of merger with the Defendant. In so doing, the lower court erred by misapprehending the legal doctrine on a lawsuit seeking objection against the grant of succession execution clause, thereby adversely affecting the conclusion of the judgment

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee In-bok (Presiding Justice)