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(영문) 서울고등법원 2018.02.07 2017나2058619
승계집행문부여에 대한 이의
Text

1. All appeals filed by the plaintiffs are dismissed.

2. The costs of appeal are assessed against the Plaintiffs.

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

Reasons

1. The reasoning of the court’s explanation as to this case is as follows, i.e., the admitting the judgment of the court of first instance, i.e., the following: (a) the Plaintiffs’ additional assertion in the trial of the court of first instance is identical to the ground of the judgment of the court of first instance, except for the addition under the following 2; and (b) such additional assertion is acceptable

A person shall be appointed.

E. On October 2, 2014, Plaintiff A filed a lawsuit of objection against the Defendant, which included the purport of seeking the refusal of compulsory execution based on the instant promissory note as Seoul Central District Court 2014Gahap49017, and Plaintiff B participated in the said lawsuit for Plaintiff A. On October 16, 2015, the first instance court rendered a judgment in favor of the Plaintiff, which included the following: “The compulsory execution based on the instant promissory note No. notarial deed shall be dismissed only for the portion exceeding KRW 259,824,287,” which included the content that “The compulsory execution based on the instant promissory note No. notarial deed shall be dismissed. 2) The Plaintiff appealed and appealed, but all of which was dismissed, and the said judgment became final and conclusive on May 16, 2017.

(Seoul High Court Decision 2015Na2071977 decided Oct. 26, 2016, and Supreme Court Decision 2017Da204643 Decided April 28, 2017). Meanwhile, in the appellate court of a demurrer, the Plaintiff A cannot exercise the right to demand reimbursement against the Plaintiff: (i) the Defendant is the actual obligor of the instant loan; (ii) the Defendant is not entitled to exercise the right to demand reimbursement against the Plaintiff; (iii) the instant promissorysory note claim, which is the main obligor, cannot be exercised directly against the Plaintiff; and (iv) the lender of the instant case, separately from the instant loan claim, assigned only the instant promissory note claim, which falls under the guarantee claim, to the Defendant; and (iv) the grant of the right to demand reimbursement was made by a tort, such as a false declaration or an unauthorized representation between the instant lender and the Defendant, but all of them were asserted.

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