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(영문) 대전고등법원 2018.11.29 2018나13125
청구이의
Text

1. The plaintiff's appeal is dismissed.

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

The purport of the claim and appeal is the purport of the appeal.

Reasons

1. The reasoning of the judgment of the court of first instance citing this case is as follows, and this case is cited by the main sentence of Article 420 of the Civil Procedure Act, except for addition and supplement as follows.

However, from the third bottom of the judgment of the court of first instance to the third bottom of the judgment of the court of first instance, the "guaranteed bill claim" in the third part shall be regarded as the "debted bill obligation".

2. The addition;

A. The gist of the Plaintiff’s assertion is that the instant promissory note’s claim is KRW 1.2 billion for indemnity against the Plaintiff and KRW 1.2 million for business funds against D arising from the repayment by D, a joint and several surety, of the Plaintiff’s debt against D.

However, since the above claim for indemnity is invalid as a promissory note issued by D on August 17, 2007 by P as the premise thereof is null and void, it is not nonexistent, and the above claim for business funds is not nonexistent since H was caused by a false declaration of agreement between H and D.

In other words, there is no underlying claim of the Promissory Notes of this case.

B. Since Article 44(3) of the Civil Execution Act provides that when there exist many grounds for raising an objection, a claim shall be asserted at the same time when there are several grounds for raising an objection. Thus, the assertion of other grounds for objection that could have been asserted in the preceding lawsuit at the time of raising an objection to the same enforcement title after the judgment becomes final and conclusive is not permissible as it goes against the res judicata of the final and conclusive judgment in the preceding lawsuit, and res judicata effect of the final and conclusive judgment pursuant to Article 218(1) of the Civil Procedure Act extends

However, according to the purport of the evidence Nos. 1 and 2 as well as the entire pleadings, the Plaintiff filed a lawsuit of demurrer against D on April 5, 2012, which was prior to the filing of the instant lawsuit (hereinafter “prior action”) against D to seek the denial of compulsory execution based on the notarial deed of the Promissory Notes (hereinafter “instant case”), and the first instance court dismissed the Plaintiff’s claim on August 30, 2013.

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