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1. The instant lawsuit shall be dismissed.
2. The costs of lawsuit shall be borne by the Plaintiff.
Reasons
1. The following facts may be found either in dispute between the parties or in Gap evidence No. 11 by integrating the purport of the entire pleadings.
The Defendant paid the sale price on May 7, 2014 and completed the registration of ownership transfer at around that time, upon receiving a decision of permission for sale in the sale process of F real estate auction procedure in the Incheon District Court, which commenced with respect to the E apartment No. 502 (hereinafter “instant real estate”).
C. On November 21, 2014, the Defendant filed an order against the Plaintiff to deliver real estate stated in the purport of the claim against the instant real estate (hereinafter “instant order”) and received a decision of acceptance from the said court. The Defendant is continuing to file an immediate appeal against the said decision to the Incheon District Court C.
2. The plaintiff's assertion and judgment
A. On April 1, 2003, the Plaintiff’s summary of the Plaintiff’s assertion completed the construction by being awarded a contract with H for construction cost of KRW 57,00,000 for the non-design and waterproof construction portion of the instant real estate from G’s representative director. However, the Plaintiff’s legitimate lien holder who was transferred the instant real estate from H and possessed it from May 18, 2005, due to the Plaintiff’s failure to receive the construction cost from G or H, is subject to a compulsory execution under the extradition order of this case.
B. In light of the purport of Article 136(5) of the Civil Execution Act stipulating that an immediate appeal may be filed against the judgment on the application for the extradition order, it is reasonable to view that the extradition order should be finalized in order to object to a suit of objection as stipulated in Article 44 of the Civil Execution Act against the extradition order. However, the fact that the Plaintiff filed an immediate appeal against the extradition order of this case and the appellate trial is pending is the same as seen earlier. Thus, the Plaintiff’s lawsuit of this case can be subject to a lawsuit of objection as to the claim for the exclusion of enforcement force of the non-determined extradition order.