2014da 43288 Objection

nan

Daegu Dong-gu

Attorney Lee - Law Firm *

** *

Daegu Dong-gu

Attorney Lee - Law Firm *

January 30, 2015

March 6, 2015

1. The defendant's enforcement against the plaintiff****** the lease deposit case on August 31, 2004.

2. This Court approves a ruling of suspension of compulsory execution made on October 13, 2014, ** In respect of cases of application for suspension of compulsory execution*

3. The costs of the lawsuit shall be borne by the defendant.

4. Paragraph 2 can be provisionally executed.

The order is as set forth in the text.

1. Facts of recognition;

A. On March 7, 2002, the Plaintiff leased approximately 20 square meters of housing of the second floor (hereinafter “instant housing”) among the buildings owned by the Plaintiff to the Defendant * 32,000,000,000 won as lease deposit, and 2 years of lease. The Defendant around that time paid the Plaintiff the above lease deposit amount of KRW 32,00,000,000,000 to the Plaintiff and resided in the said housing.

B. After the expiration of the lease term, the defendant filed a lawsuit seeking the return of the lease deposit under this court *****. In the above case, the court "the plaintiff filed a lawsuit against the defendant on September 2004."

30. up to 30,000 won shall be paid to the plaintiff. If the plaintiff delays the above payment date, the remaining amount shall be paid at the rate of 20% per annum from October 1, 2004 to the date of full payment. The above decision was confirmed on August 31, 2004 and confirmed on August 31, 2004 (hereinafter "the decision of recommending settlement of this case").

C. However, the Plaintiff did not refund the above lease deposit to the Defendant not later than the date determined in the decision of recommending the settlement of this case. Even after the decision of recommending the settlement of this case became final and conclusive, the Defendant continued to sublease the housing of this case to a third party or to use it in the form of direct residence.

D. The Plaintiff: (a) KRW 1 million on April 1, 2014; (b) KRW 10 million on April 1, 2014; and (c) KRW 4 million on April 1, 2014; and (d) April 2014.

17. On April 15, 2014, each payment of KRW 17 million was made, and the full amount of KRW 32 million was returned, and the Defendant delivered the instant house to the Plaintiff on April 15, 2014.

E. Meanwhile, the Defendant filed an application for compulsory auction on real estate owned by the Plaintiff with the claim amounting to KRW 61,123,524, calculated by the rate of 20% per annum 3,486 from October 1, 2004 to April 17, 2014, with respect to KRW 3,200,000 as executive titles, the original copy of the ruling on the recommendation for compromise in this case is as ***. The Defendant filed an application for compulsory auction on the real estate owned by the Plaintiff, and the compulsory auction procedure was commenced on August 18, 2014.

[Ground of recognition] A without dispute, significant facts in this court, entries in Gap evidence 1 to 4, the purport of the whole pleadings

2. Determination

A. In a case where the contents of a final and conclusive judgment are contrary to substantive legal relationship, the execution is not allowed as an abuse of rights in a case where it is recognized that the execution of the final and conclusive judgment is considerably improper and it is evident that the execution of the final and conclusive judgment would be allowed to the other party, and in such a case, the execution of the final and conclusive judgment may be excluded by the action of objection (see Supreme Court Decision 2008Da79876, May 28, 2009, etc.). This is also the same in the case of a ruling of reconciliation recommendation with the same effect as the final and conclusive judgment.

B. Therefore, it can be seen that there was an implied agreement between the Plaintiff and the Defendant that the Defendant continued to use the instant house after the said settlement recommendation was made, on the following grounds: (a) the Defendant, even after the said recognition was made and the entire purport of the pleadings was comprehensively taken into account; (b) the Defendant transferred the instant house to the Nonparty, or occupied and used the instant house for about ten (10) years, including the Defendant’s direct residence, and did not express any intent on the refund of the deposit; and (c) the Defendant filed an application for compulsory execution with the amount of damages for delay equivalent to two (2) times the principal of the deposit after the Defendant received the entire principal of the deposit after about ten (10) years from the date of the said settlement recommendation; and (d) the lessor’s obligation to return the deposit and the lessee’s obligation to deliver the leased object to the Plaintiff at the time of the said determination; and (e) the settlement recommendation was delivered to the Plaintiff at least when the said decision was made;

30. In light of the circumstances, such as the fact that it is reasonable to interpret that the delivery is premised on delivery, compulsory execution based on the decision of recommending reconciliation in this case constitutes abuse of rights, and thus, cannot be allowed unless there are special circumstances.

3. Conclusion

Therefore, the plaintiff's claim of this case is justified, and it is so decided as per Disposition.

Judges Seo-young