(영문) 서울동부지방법원 2019.11.29 2019가단6905

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(영문) 서울동부지방법원 2019.11.29 2019가단6905

청구이의

Text

1. The instant lawsuit shall be dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

Reasons

1. Facts of recognition;

A. On January 16, 2014, the Defendant applied for a payment order against the Plaintiff with Seoul Eastern District Court No. 2014 tea150, the Defendant received an order to pay the Plaintiff at the rate of 5,278,750 won per annum from August 1, 2011 to the service date of the original copy of the payment order, and 5% per annum from the next day to the service date of the original copy of the payment order, and 20% per annum from the next day to the day of the payment. The above payment order became final and conclusive around that time because the Plaintiff did not raise any objection.

(hereinafter “instant payment order”). B.

On September 18, 2018, the Defendant transferred to Nonparty D Co., Ltd. (hereinafter “D”) the entire claim for the price of goods based on the instant payment order. On the same day, the Defendant notified the Plaintiff of the assignment of claims, and the said notification reached the Plaintiff on September 20, 2018.

C. D around September 27, 2018, filed an application with the Seoul Eastern District Court for granting the succeeding execution clause regarding the instant payment order, and received the succeeding execution clause on October 4, 2018.

[Ground of recognition] Facts without dispute, Gap evidence 1, Gap evidence 4, Eul evidence 2-1, Eul evidence 2-2, the purport of the whole pleadings

2. Determination as to the legitimacy of the instant lawsuit

A. The defendant asserts that the lawsuit of objection of this case filed against the defendant is unlawful, since there is no standing to be a party to execution based on the payment order of this case.

(b) In the event that the claim on the title of execution meets the requirements for setting up against the assignee by transfer, the standing to be a party to the execution shall be changed to the assignee, and the execution creditor shall be decided as the assignee according to the intention to obtain the succession execution clause. As such, the executory power of the existing executive titles against the transferor shall be extinguished due

Therefore, a subsequent suit of objection filed against the transferor is filed against the non-qualified person, or the executory power of the title which has already been extinguished.

유사 판례

-대법원 2008. 2. 1. 선고 2005다23889 판결

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