(영문) 인천지방법원 2016.11.02 2016나7913 | 리걸엔진

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(영문) 인천지방법원 2016.11.02 2016나7913

제3자이의의 소

Text

1. Revocation of a judgment of the first instance;

2. The instant lawsuit shall be dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

Reasons

1. On February 23, 2016, the Defendant attached the instant movable property based on an executory exemplification of the judgment in the case of loans rendered by the Incheon District Court 2005Kahap5276 against C on February 23, 2016.

[Reasons for Recognition] Gap evidence No. 1

2. Determination on the legitimacy of a lawsuit

A. The Plaintiff asserted that the instant movable is owned by the Plaintiff, and sought a non-permission of compulsory execution against the Defendant against the instant movable. We examine ex officio the lawfulness of the instant lawsuit.

B. (1) A lawsuit of demurrer by a third party is filed against a third party who has ownership or right to block transfer or transfer of the subject matter of compulsory execution and seeks to exclude enforcement of compulsory execution that is practically underway by infringing on such right. Thus, if a lawsuit of demurrer by a third party is filed after the completion of the pertinent compulsory execution, or compulsory execution that existed at the time of the filing of a lawsuit by a third party is terminated during the proceeding of the lawsuit, it is unlawful as there is no benefit of the lawsuit.

(2) According to the purport of the entire pleadings, the following facts can be acknowledged: (a) the sale of corporeal movables in the provisional auction procedure for the instant movables is underway on March 29, 2016; and (b) the distribution procedure is completed.

Therefore, inasmuch as compulsory execution against the movables of this case, which existed at the time when a third party’s suit was filed, has been terminated during the course of the lawsuit of this case, there is no interest in the lawsuit of this case.

3. As such, the lawsuit of this case is unlawful and thus, it shall be dismissed, and the judgment of the court of first instance is unfair with different conclusions, so the judgment of the court of first instance shall be revoked and the lawsuit of this case shall be dismissed as per Disposition.

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