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인천지방법원 2016.05.27 2015가단51042

제3자이의의 소

Text

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

Reasons

1. Facts recognized;

A. On March 24, 2011, the Defendant filed a lawsuit against B, as the Incheon District Court Decision 2010Kadan12041, and sentenced B to the judgment that “B shall pay to the Defendant the amount calculated at the rate of 18% per annum from November 23, 2010 to the date of complete payment” with respect to KRW 67,880,097 and KRW 21,90,460 among them (hereinafter “instant judgment”), and the said judgment became final and conclusive as it is.

B. Based on the executory exemplification of the judgment of this case, the Defendant delegated enforcement officer of the Incheon District Court with compulsory execution on the instant movable property, and accordingly, the attachment execution was conducted on September 2, 2015, Incheon District Court No. 2015No. 7792 (hereinafter “the instant apartment”) with respect to the instant movable property, which is located in Nam-gu C and 9 Dong 806 (hereinafter “the instant apartment”).

C. The Plaintiff and B shared consultations on July 13, 2000.

[Ground of recognition] Facts without dispute, Gap evidence 1, 3, 5, 6 and the purport of the whole pleadings

2. The assertion and judgment

A. (1) It is unreasonable for the Defendant to enforce compulsory execution against B, despite the Plaintiff’s sole ownership of the instant movable property, which is alleged by the Plaintiff.

(2) The Defendant’s assertion and B maintained de facto marital relationship even after divorce, and thus, compulsory execution against the instant movable is justifiable.

B. Determination is based on the following circumstances: (a) Gap evidence 3, Eul evidence 4, Eul evidence 2, Eul evidence 6, Eul evidence 7-1, and Eul evidence 7-2; and (b) Eul was registered as a resident of the apartment of this case, which is the plaintiff's residence from February 5, 2004 to March 15, 201 after the divorce, and from December 4, 2014 to September 3, 2015, which is the following day after the execution of the attachment; (c) around December 9, 2014, the head of this case confirmed that Eul actually resided in the apartment of this case; and (d) on April 11, 2016, the head of this case confirmed that B actually resided in the apartment of this case.