In a lawsuit for grant of execution clause, where it is recognized that there is executory power only for a part of the plaintiff's claim, the court ordering the grant of execution clause.

Where an execution clause agency grants an execution clause to a part of the claim indicated in the executive title, it shall specify the scope within which compulsory execution may be conducted and enter in the execution clause (see Article 20(1) of the Civil Execution Rule). Meanwhile, where a creditor files an application for the grant of execution clause by submitting a judgment in the lawsuit for granting execution clause and filing an application for the grant of execution clause, the execution clause shall be granted by the judgment without examining and determining the requirements for granting execution clause. Therefore, where it is recognized that there exists an executory power only for a part of the Plaintiff’s claim seeking a grant of execution clause in the lawsuit for granting execution clause, the court shall order the grant of execution clause by specifying the scope within which compulsory execution can be conducted so that the execution clause may be granted only for a

Articles 30 and 33 of the Civil Execution Act, Article 20(1) of the Civil Execution Rule

Plaintiff church (Law Firm Il, Attorneys Park Tae-ok et al., Counsel for the plaintiff-appellant)

Defendant (Attorney Kim Jong-sik, Counsel for defendant-appellant)

Seoul Eastern District Court Decision 2008Na6450 Decided February 4, 2009

1. The judgment of the court of first instance is reversed and the judgment is modified as follows.

A. Of the decisions of the Seoul Eastern District Court 2005da6986 (Main Office), 2006Gadan2750 (Counterclaim), the junior administrative officer of the Seoul East Eastern District Court 21 million won as to the former part of paragraph (3), among the decisions of the court in lieu of conciliation that became final and conclusive between the plaintiff and the defendant, shall grant the execution clause to the plaintiff for compulsory execution against the defendant.

B. The plaintiff's remaining claims are dismissed.

2. 3/4 of the total litigation costs is assessed against the Plaintiff, and the remainder is assessed against the Defendant, respectively.

The grounds of appeal are examined.

1. The court below determined as follows: (a) in the case of Seoul East Eastern District Court Decision 2005Da66986, 2006Kadan2750 (Counterclaim), “1. The plaintiff shall pay 50 million won to the defendant by June 30, 2006; and (b) the defendant shall not park the land of this case from the date of receiving the above money from the plaintiff to the date of full payment; and (c) the plaintiff shall not interfere with the use of the land of this case; (b) if the defendant violates the above 2-2-2-2 (1), the defendant shall pay to the plaintiff an amount equivalent to KRW 1 million per day; (c) if the above 2-2-2-2-1 (2) is violated, the defendant shall pay the parking money at the rate of KRW 5 million per day to the defendant; and (d) if the defendant has otherwise recognized that the decision was paid to the defendant in lieu of the above-mentioned decision, the defendant shall pay the part of this case to the defendant.”

In light of the records, the judgment of the court below is just, and there is no error in the misapprehension of legal principles as to the achievement of the conditions attached to the executive title, contrary to the allegations in the grounds of appeal.

2. Meanwhile, the court below acknowledged the existence of enforcement force only for a part of the plaintiff's claim within the scope of the plaintiff's claim, on the ground that the defendant's violation of Article 2-2 (1) and (2) of the decision of this case by 297 days, alleged that the conditions attached to the former and latter parts of paragraph (3) of the decision of this case have been fulfilled, and that the plaintiff's claim seeking a grant of enforcement clause for compulsory execution against the claim for penalty of KRW 450 million ( KRW 1 million per day ( KRW 1 million + KRW 500,000 per day + KRW 50,000 per day) x 297) arising as a result of the fulfillment of such conditions, was justified by ordering the defendant to complete compulsory execution against the defendant's decision of this case.

However, where an execution clause is granted for a part of the claim indicated in the execution title, the execution clause agency shall specify the scope to which compulsory execution can be conducted and enter the scope to which it is to be conducted (see Article 20(1) of the Civil Execution Rule). Meanwhile, where a creditor submits a judgment of winning in a lawsuit for granting a execution clause and files an application for the grant of an execution clause to be granted, the execution clause shall be granted by the judgment without examining and determining the requirements for granting a execution clause. Therefore, where the existence of executory power is recognized only for a part of the plaintiff's claim seeking a grant in a lawsuit for granting a execution clause, the court shall order to grant a execution clause by specifying the scope to which compulsory execution can be conducted so that the execution clause can be granted only for a

Therefore, as seen earlier, inasmuch as the existence of executory power is recognized within the scope of KRW 21 million with respect to the title of enforcement title under the former part of Paragraph (3) of the instant decision, and this is only a part of the Plaintiff’s claim for grant of execution clause, the lower court should have ordered grant of execution clause and dismissed the remainder of the Plaintiff’s claim. Nevertheless, the lower court’s dismissal of the Defendant’s appeal on the ground that the first instance judgment, which accepted the Plaintiff’s claim as a whole, is justifiable, is inconsistent with the reasoning of the judgment below

3. Therefore, the judgment of the court below is reversed, and the case is sufficient to directly judge the party members, and as such, the decision is made in accordance with Article 437 of the Civil Procedure Act. According to the above, among the decision of this case, the execution clause shall be ordered within the scope of KRW 21 million, which is recognized only as an executory power upon the fulfillment of the conditions as to the enforcement title of Paragraph (3) of the decision of this case. Thus, the plaintiff's claim shall be accepted within the scope of the above recognition, and the remainder of the claim shall be dismissed without any justifiable reason. Since the judgment of the court of first instance is unfair with different conclusions, it is so decided as per Disposition by the assent of all participating Justices who reviewed the change

Justices Kim Nung-hwan (Presiding Justice)