2015Da207587, Objection to Claim

2015Da207594 (Counterclaim) Objection

A

person

B

Seoul Eastern District Court Decision 2014Na20761 (main office), 2014NaNa decided January 30, 2015

20778 (Counterclaim) Judgment

2016, 324.

The part of the judgment of the court below concerning the main lawsuit shall be reversed, and that part of the case shall be remanded to the Panel Division of the Seoul Eastern District Court.

The grounds of appeal are examined.

1. There is no benefit to seek non-permission of compulsory execution by an action of demurrer after the creditor obtains satisfaction after compulsory execution based on executive titles has been completed as a whole (see Supreme Court Decision 96Da52489, Apr. 25, 1997).

Meanwhile, the existence of interest in a lawsuit is a matter of ex officio investigation by the court, and the matter of ex officio investigation is not asserted by the parties until the closing of arguments in the court of final appeal, even if they are asserted only in the court of final appeal (see Supreme Court Decision 2008Da37247, Oct. 29, 2009).

2. According to the reasoning of the judgment below, the court below held that the defendant (Counterclaim Plaintiff) (hereinafter "the defendant") is liable to prove the cause of the loan claims that were the cause of the claim for the payment order of this case, and the evidence submitted by the defendant alone is insufficient to recognize such fact, and thus, it rejected compulsory execution based on the payment order of this case.

However, according to the records, the plaintiff (Counterclaim defendant) presented in the complaint of this case and the preparatory documents on November 25, 2013, which were submitted by the court of first instance, that the procedure for compulsory auction against the plaintiff's vehicle under the payment order of this case was in progress. In addition, since the defendant received the total amount of claims against the plaintiff on June 17, 2014 in the procedure for compulsory auction of this case, he received the dividends from the plaintiff on June 17, 2014, the plaintiff's principal lawsuit should be dismissed as the plaintiff did not have any interest to seek a refusal of compulsory execution due to the objection of this case, and the court below asserted that the above vehicle was sold during the procedure for compulsory auction of this case and submitted data to the effect that the court below confirmed that the highest decision of provisional sale was issued on April 1, 2014.

In light of these circumstances, it is reasonable to view that the compulsory auction procedure based on the instant payment order has already been completed. Therefore, the lower court should have examined whether the compulsory auction procedure based on the instant payment order has been completed or not. The allegation in the grounds of appeal assigning this error is with merit.

3. Therefore, without examining the defendant's remaining grounds of appeal by the assent of all participating Justices, the part concerning the principal lawsuit among the judgment below is reversed, and this part of the case is remanded to the court below for further proceedings consistent with this Opinion.

Justices Kim In-bok

Justices Park Jae-hee in charge

Justices Park Young-young

Justices Kim Jong-il