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1. The instant lawsuit shall be dismissed.
2. The costs of lawsuit shall be borne by the Plaintiff.
Reasons
Basic Facts
Based on the executory exemplification of the judgment of Daejeon District Court 2016Kadan21311, the Defendant executed the seizure of corporeal movables (Seoul Central District Court D) on April 14, 2020 on each of the movables listed in the separate sheet (hereinafter “instant movables”).
[Ground of recognition] A without dispute, entry of evidence No. 1, purport of the whole pleadings
2. We examine, ex officio, whether the instant lawsuit is lawful or not, ex officio, as to the determination on the legitimacy of the instant lawsuit.
A lawsuit of demurrer by a third party is unlawful in cases where a third party who has ownership or right to prevent transfer or delivery of an object of compulsory execution, raises an objection against compulsory execution that is practically being carried out by infringing on such ownership or right, and seek the exclusion of execution. Therefore, in cases where a lawsuit of demurrer by a third party is filed after the compulsory execution concerned is completed or compulsory execution that existed at the time when a lawsuit of objection by a third party is filed is completed, it is unlawful as there is no benefit
If a request for auction is withdrawn, the effect of seizure is extinguished and the auction procedure is terminated naturally (Article 93(1) of the Civil Execution Act). Therefore, even in cases where a lawsuit by a third party was in progress at the time of filing a lawsuit, but a request for auction is withdrawn during the course of a lawsuit, there is no benefit in the lawsuit (see Supreme Court Decision 2016Da207973, Jun. 9, 2016). According to the statement submitted by the Defendant to this court on September 23, 2020, according to the record of the certificate of withdrawal submitted by the Defendant to this court, the Defendant may recognize the fact that the application for compulsory execution (Seoul Central District Court D) with respect to the movable property of this case is withdrawn on September 22, 2020, and thus, the lawsuit
3. Thus, the lawsuit of this case is dismissed as unlawful.