2015 Ghana 8819 Interest by a third party

A person shall be appointed.

B

April 12, 2016

April 26, 2016

1. Of the instant lawsuit, the part demanding the denial of compulsory execution against the deposit claims listed in the separate sheet No. 1 shall be dismissed.

2. The Defendant’s compulsory execution against the Plaintiff on December 15, 2015, based on the executory exemplification of the Chuncheon District Court Decision 2015Gau3030, the deposit claims listed in the separate sheet No. 2, 2015, against the Plaintiff.

3. The decision to suspend compulsory execution made by this Court as of December 29, 2015 with respect to the case 2015 Chicago41 shall be authorized only to the part on the deposit claims listed in attached Form 2.

4. The costs of the lawsuit shall be borne by the original and the Defendant, each by 1/2.

5. Paragraph 3 can be provisionally executed.

Based on the original executory exemplification of this Court Decision 2015Na3030, the Defendant against the Plaintiff, based on the original executory exemplification of this Court Decision.

12.15. There shall be no compulsory execution against each deposit claim listed in the separate sheet.

1. Basic facts

A. Upon the death of the deceased C on December 25, 2014, the Plaintiff, D, and E, the heir, filed a qualified acceptance report with the competent court 2015-Ma86, and received the said report from the said court on March 6, 2015.

B. The Defendant, a creditor of the net C, filed a lawsuit against the Plaintiff, D, and E seeking the return of the above loan, and “The Plaintiff, within the scope of the property inherited from the network C, paid KRW 4,285,714, KRW 2,857, and KRW 142, respectively, and KRW 20% per annum from March 5, 2015 to the date of full payment (this Court Decision 2015Da3030, hereinafter referred to as the “related case or the “related judgment”) was sentenced on July 27, 2015, and the said judgment became final and conclusive around that time.

C. On December 15, 2015, based on the relevant judgment, the Defendant issued a collection order (hereinafter “instant seizure and collection order”) against each of the deposit claims listed in the Plaintiff’s separate sheet (hereinafter “instant one claim,” and “instant two claims”) as indicated in the Plaintiff’s separate sheet, based on the relevant judgment.

[Ground of recognition] The facts without dispute, Gap 1-7 evidence (including branch numbers), and the purport of the whole pleadings; 2. Determination as to the legitimacy of the part of the lawsuit of this case seeking non-performance of compulsory execution against the claim of this case

Ex officio, the part of the lawsuit of this case seeking the non-permission of compulsory execution against the claim of this case is legitimate.

The deposit contract of this case (the debtor: the principal agricultural cooperative) is terminated before the issuance of the seizure and collection order of this case, and the remaining amount is deemed to be zero, or there is no dispute between the parties, or the third party who has the right to prevent the transfer or transfer of ownership against the object of compulsory execution, and seeks an objection against the compulsory execution, and the exclusion of execution is sought (see Supreme Court Decision 96Da49049 delivered on October 10, 197, etc.). Since the lawsuit of the third party is filed by the third party who has the right to prevent the transfer or transfer of ownership against the object of compulsory execution, and the third party who has the right to prevent the transfer or transfer of ownership against the claim of this case is practically underway, it is not likely that the collection is practically carried out even after the issuance of the seizure and collection order of this case against the claim of this case where the deposit contract had already been terminated, even if the collection order was issued (the defendant also recognized and applied for the withdrawal and cancellation of the claim of this case as to the claim of this case).

3. Of the lawsuit in this case, the judgment on the part on which the non-permission of compulsory execution against the two claims in this case is sought

A. Determination on the cause of the claim

According to the evidence Nos. 1 through 8 and 7, each of the evidence Nos. 6-1 to 8 and 17, the claim Nos. 2 of this case, subject to the seizure and collection order of this case, is mixed with the net C inherited property as the plaintiff by the depositor.

Inasmuch as it is recognized that the instant claim 2 is not inherited property, it is reasonable to deem that the instant claim is the Plaintiff’s proprietary property, not inherited property. Therefore, barring any special circumstance, compulsory execution against the instant claim 2, which is the Plaintiff’s proprietary property, based on the relevant judgment, ought to be unreasonably dismissed.

B. Judgment on the defendant's assertion

1) The gist of the claim is that the net C’s inherited property is not in excess of the debt. Thus, the defendant may execute the inheritance of the Plaintiff’s general property (which appears to refer to the Plaintiff’s general property) within the scope of the active property inherited.

B) Although the deceased C’s death paid annual compensation, excess work allowance, and performance bonus, the Plaintiff omitted this in the list of inherited property at the time of qualified acceptance, and did not disclose it in related cases. This constitutes a defective qualified acceptance, and the Plaintiff is ultimately liable for the full repayment of the obligation according to the relevant judgment.

2) Determination

According to Article 1028 of the Civil Code, the above argument of the defendant is without merit. The qualified acceptance is approved on the condition that the obligor's obligation is repaid within the limit of the property to be acquired by inheritance. The scope of liability is limited to the inherited property, not to determine the existence of the obligation, and compulsory execution is not possible on the inheritor's proprietary property (see Supreme Court Decision 2003Da30968 delivered on November 14, 2003). The above "limit of the property to be acquired by inheritance" means "affirmative property is limited to all rights and obligations belonging to the inheritee." Therefore, as long as the two claims of this case are the plaintiff's proprietary property, it is reasonable to deny compulsory execution on the two claims of this case regardless of whether active property exceeds the small property among inherited property.

B) The Defendant’s assertion that the Plaintiff is inherited property (compensation for annual leave, excess work allowance, performance bonus, etc.)

Since B intentionally did not enter them in the list of property, the Civil Code Article 1026, Paragraph 3 is deemed to have the net approval of the statutory team, and thus, it is responsible for the full repayment of the debt without limitation of liability.

On the other hand, in a prior suit between an obligee and an inheritor regarding a claim against an inheritee, when the judgment ordering payment within the scope of inherited property becomes final and conclusive by recognizing a qualified acceptance of an inheritor within the scope of inherited property, such obligee is not allowed to seek a judgment without reservation on the scope of liability for the above claim by asserting the fact that the said claim cannot be compatible with a qualified acceptance, such as statutory simple acceptance, existing prior to the closing of argument in the previous suit, which is the basis of the above judgment, by a new suit against the inheritor. This is not only the existence and scope of the subject matter of a prior suit directly (an inheritance obligation) but also the existence and effect of the qualified acceptance is also similar to that of the claim, but also the same is also examined. In addition, when the qualified acceptance is recognized, a reservation on the scope of liability is stipulated in the text, so the existence and effect of the qualified acceptance shall be effective as res judicata with the judgment on the previous suit (Supreme Court Decision 2012Da3197 Decided May 09, 2012). Therefore, in light of the above legal principles, it cannot be asserted that the Defendant’s assertion that the above judgment is inconsistent with the foregoing.

4. Conclusion

Of the instant lawsuit, the part seeking the non-performance of compulsory execution of the instant claim 1 is unlawful and dismissed, and the remainder is justified, and it is so decided as per Disposition by the assent of all participating Justices on the bench to approve the decision to suspend compulsory execution corresponding to the cited part.

Judges Doz.

A person shall be appointed.