[1] In a case where a debtor gives up his/her renunciation of inheritance, but fails to assert it by the time the fact-finding proceedings are concluded in the lawsuit brought by the creditor, whether the creditor may file an objection suit after the judgment in favor of the creditor became final and conclusive

[2] Where the execution obligor can exclude execution of a final and conclusive judgment that is contrary to the substantive legal relationship by filing a claim objection suit

[1] Even in a case where a debtor made a qualified acceptance but a judgment was rendered and confirmed without reservation as to the scope of liability until the time the argument of the lawsuit brought by the creditor is closed at the court of fact-finding, it is permissible for the debtor to file a lawsuit of demurrer against the claim on the ground of the above qualified acceptance. The restriction on liability by the qualified acceptance is limited to the scope of inherited property by limiting the executory power of the judgment by limiting the subject of execution of the judgment to the extent of inherited property, regardless of the existence and scope of inherited property, and the limitation on liability by the qualified acceptance is merely limited to the scope of executory power of the judgment. If the debtor does not claim a qualified acceptance against the inheritor who succeeded to the obligor's monetary obligation against the obligee, the scope of liability does not appear as a subject of a real adjudication, and it does not affect the res judicata effect of the judgment. Unlike the above legal principle of limitation on the effect of forfeiture of rights by res judicata effect as seen above, the existence of an obligation by inheritance itself becomes an issue, and as a matter of course, a waiver of res judicata

[2] In a case where the contents of a final and conclusive judgment are contrary to the substantive legal relationship, the execution is not allowed as an abuse of rights in a case where the execution of the final and conclusive judgment is deemed to be considerably unfair and to be acceptable for the other party in a social life because it is obviously contrary to the definition, and in such a case, the execution obligor may seek the exclusion of its execution by filing a claim objection suit.

[1] Article 44(2) of the Civil Execution Act, Articles 216 and 218 of the Civil Procedure Act / [2] Articles 24 and 44(2) of the Civil Execution Act, Article 2 of the Civil Act

[1] Supreme Court Decision 2006Da23138 Decided October 13, 2006 (Gong2006Ha, 1910) / [2] Supreme Court Decision 99Da32899 Decided November 13, 2001 (Gong2002Sang, 29)

Plaintiff (Attorney Kim Jong-soo et al., Counsel for the plaintiff-appellant)

Defendant

Suwon District Court Decision 2008Na10331 Decided October 15, 2008

The appeal is dismissed. The costs of appeal are assessed against the Plaintiff (Appointed Party).

We examine the grounds of appeal.

Even in a case where a debtor has made a qualified acceptance but a judgment without reservation is rendered and confirmed as to the scope of liability that does not claim it until the time the argument in the fact-finding proceedings in a lawsuit brought by the creditor is closed, it is permissible for the debtor to file a lawsuit of demurrer against the claim on the ground of the above qualified acceptance. The limitation of liability based on a qualified acceptance is limited to the scope of inherited property, regardless of the existence and scope of inherited property. However, the limitation of liability based on a qualified acceptance is limited to the scope of executory power of the judgment by limiting the scope of executory power of the judgment. If the debtor does not claim the qualified acceptance of the inherited property against the inheritor who inherited the inheritee, the scope of liability does not appear as a subject of a real adjudication, and it does not affect the res judicata effect as to the above relation as well as the reasons, and unlike the limitation of liability arising from the inheritance, the above limitation of res judicata effect based on the res judicata effect cannot be applied in a case where the existence of a final and conclusive judgment as to the inherited property itself becomes an issue of res judicata effect.

According to the reasoning of the judgment of the court below, the court below determined as follows: (a) the plaintiff (appointed party, hereinafter "the plaintiff") et al. who was the heir of the deceased non-party who was liable for the return of the lease deposit in its judgment against the defendant filed a lawsuit claiming the return of the lease deposit on December 13, 2006 by the defendant for the above claim for the return of the lease deposit due to the above inheritance; and (b) the above final judgment was rendered in the name of the debtor, and as a result, the compulsory execution of this case was caused by the above final judgment; (c) on the ground that the designated parties such as the plaintiff et al. filed a lawsuit seeking the exclusion of the above executive force on March 10, 204, which reported the waiver of the inheritance of the deceased non-party's property before the closing of argument in the above final judgment, and thus, the above ground for objection under Article 44(2) of the Civil Execution Act should have arisen after the closing of argument in the above final judgment, and thus, it cannot be applied to the above case concerning the inheritance waiver of inheritance.

According to the above legal principles and the facts admitted by the court below, the above judgment of the court below is justifiable.

The court below did not err in the misapprehension of legal principles as to renunciation of inheritance as otherwise asserted in the ground of appeal.

Meanwhile, in a case where the contents of a final and conclusive judgment are contrary to substantive legal relations, the execution of the final and conclusive judgment is not allowed as abuse of rights in a case where it is deemed that the execution of the final and conclusive judgment is considerably unfair 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 would not be allowed as abuse of rights. In such a case, the execution obligor may seek the exclusion of the execution of the final and conclusive judgment (see Supreme Court Decision 9Da3289 delivered on November 13, 2001, etc.). As recognized by the lower court, as long as it is difficult to deem that the final and conclusive judgment was received with knowledge of the circumstances in which the designated party, including the Plaintiff, etc. renounced inheritance, the circumstance asserted in the ground of appeal is sufficient to deem that the execution of the final and conclusive judgment is considerably unfair and unfair, and its execution would not be contrary to the justice of the court below.

The court below did not err in the misapprehension of legal principles as to abuse of rights.

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

Justices Yang Chang-soo (Presiding Justice)