In case where compulsory execution based on an invalid notarial deed is completed as a whole, whether an obligor has a benefit to seek the denial of such compulsory execution by filing an objection to a claim (negative)

In a case where a notarial deed, which is a title of debt, is prepared upon the commission of an unauthorized representative and is null and void, the debtor may seek a judgment of non-permission of compulsory execution by a lawsuit of demurrer against a claim, as well as a lawsuit of objection against the claim, but there is no benefit to seek non-permission of compulsory execution by a lawsuit of objection against the claim no longer than after the creditor obtains the satisfaction as a whole.

Article 505 of the Civil Procedure Act

[Plaintiff-Appellant-Appellee] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Park Jong-soo et al., Counsel for plaintiff-appellant-appellant-appellee)

Handed type

[Judgment of the court below]

Seoul High Court Decision 95Na44216 delivered on October 11, 1996

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

We examine the grounds of appeal.

In a case where a notarial deed, which is a title of debt, is made up on the commission of an unauthorized representative and is null and void, the obligor is entitled to seek a judgment of non-permission of compulsory execution by a lawsuit of demurrer against a claim, but as a whole, there is no benefit to seek a non-permission of compulsory execution by a lawsuit of objection against a claim after compulsory execution based on such notarial deed has been completed as a whole and after the obligee's satisfaction has been completed (Supreme Court Decision 87Meu3125 Decided December 12, 199).

Therefore, as determined by the court below, as long as compulsory execution based on the promissory note notarial deed of this case has already been completed, the assertion that such notarial deed should be excluded from executive force on the ground that it is null and void as it is by the commission of the unauthorized Representative shall not be a legitimate ground for appeal without considering the truth of the fact, and it shall not be accepted.

Therefore, the appeal is dismissed, and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Cho Chang-hun (Presiding Justice)