[1] A lawsuit of demurrer against the grant of execution clause can be brought

[2] Whether an indirect compulsory execution order for the executive titles ordering the permission for perusal and copying of books or documents as an incidental act shall be deemed to have attached to the conditions under Article 30(2) of the Civil Execution Act in executing the order (affirmative), and whether an obligee shall enter in the execution clause the scope of compulsory execution in which the conditions have been fulfilled (affirmative)

[3] The burden of proving that the obligor does not violate the duty of permission for perusal and copy as the obligor does not exist in the compulsory execution stage based on the provisional disposition order ordering perusal and copy of a specific account book, etc.

[4] In case where a provisional disposition ordering an incidental act by setting the period for performing the duty to act, whether the provisional disposition order has no effect as an execution title upon the lapse of the said period (affirmative)

[1] According to Articles 45, 30(2) and 31 of the Civil Execution Act, a lawsuit of demurrer against a grant of execution clause may be instituted when the debtor contests an executory power of the judgment based on the fact that it has been attested in relation to a grant of execution clause, or contests an executory power of the judgment based on a recognized succession, in a case where the creditor bears the burden of proving that the condition has been fulfilled as a condition attached to the execution of the judgment, and where the execution clause has been granted by submitting documents attesting it at the time when the creditor bears the burden of proving that such condition has been fulfilled, and where

[2] The creditor should obtain an execution clause in order to enforce a decision of indirect compulsory performance of the incidental act obligation with the enforcement title.

In a case where an obligor violates the obligation to allow perusal and copying of books or documents as an incidental act obligation under Article 261(1) of the Civil Execution Act in the text of an indirect compulsory performance order against an executive title ordering the permission of perusal and copying of books or documents, if the obligor orders the payment of compensation pursuant to the text of an indirect compulsory performance order, the obligor does not have the obligation to allow perusal and copying of specific books or documents only when the obligee demands perusal and copying of the books or documents, or the obligee does not have the obligation to provide the relevant books or documents first to the obligee even without the obligee’s demand. Therefore, it is reasonable to deem that the obligation to pay compensation ordered in such indirect compulsory performance order is indefinite. Therefore, the indirect compulsory performance order is subject to the condition under Article 30(2) of the Civil Execution Act in executing the order. In order for the obligee to prove that the conditions have been fulfilled, the obligee’s demand for perusal and copying of specific books or documents, and that the specific books or documents constitute account books or documents ordering perusal and copying of the original executive title, etc. In such case, the execution clause shall be given within the scope of compulsory execution clause.

[3] If an order of permission for inspection or copying of a specific account book or document was issued in a provisional disposition decision, it is based on the premise that the existence of the pertinent account book or document has been substantiated. Therefore, in the compulsory execution process based on the provisional disposition decision, the obligor’s assertion that the pertinent account book or document does not violate the duty of permission for inspection or copying should be verified that there is no such account book or document.

[4] In case where a provisional disposition ordering the performance of an obligation with regard to the obligation to act by the unit is made by setting the time period for the performance of the obligation, the provisional disposition order becomes invalid upon the lapse of the time period for the performance of the obligation stipulated in the provisional disposition order, and the provisional disposition order becomes invalid any longer

[1] Articles 30(2), 31, and 45 of the Civil Execution Act / [2] Articles 30(2), 32(1), 261(1), 292, and 301 of the Civil Execution Act / [3] Articles 300 and 301 of the Civil Execution Act, Article 288 of the Civil Procedure Act / [4] Articles 292 and 301 of the Civil Execution Act

[1] Supreme Court Decision 2014Da225038 Decided August 18, 2016 (Gong2016Ha, 1340) / [2] Supreme Court Decision 2008Ma1608 Decided December 24, 2008 (Gong2009Sang, 105) / [4] Supreme Court Decision 2013Da80627 Decided April 7, 2017 (Gong2017Sang, 937)

Samtech Co., Ltd. (Law Firm Hosung, Attorneys Lee Dong-soo et al., Counsel for the plaintiff-appellant)

Defendant (Law Firm LLC, Attorneys Kim Sung-man et al., Counsel for the defendant-appellant)

Gwangju High Court Decision 2015Na15084 decided October 28, 2016

All appeals are dismissed. The costs of appeal by the Plaintiff are assessed against the Plaintiff, and the costs of appeal by the Defendant are assessed against the Defendant.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Factual basis

According to the reasoning of the lower judgment and the record, the following facts are revealed.

A. On October 4, 2012, the Defendant filed an application against the Plaintiff for provisional disposition of inspection and copying of the account books, etc. (Seoul District Court 2012Kahap953), and the said court rendered a provisional disposition order with the purport that “the Plaintiff shall allow the Defendant to inspect and copy the account books and documents (hereinafter “instant account books and documents”) in the attached Table 1 through (7), (9) of this decision for 30 days except for legal holidays from the date of delivery of this decision. In the event that the Plaintiff violated the above order, the Defendant was served on October 8, 2012 the provisional disposition order with the purport that “The Plaintiff shall pay KRW 1,00,000 per day of each violation (hereinafter “instant provisional disposition order”).” The instant provisional disposition order was served on the Plaintiff on October 8, 2012.

B. On July 22, 2014, the Defendant filed an application for grant of execution clause on the ground that the Plaintiff rejected the Defendant’s request for perusal and copy of the books and documents of this case against the instant provisional disposition order. On November 11, 2014, the Gwangju District Court has granted the execution clause to the Defendant with the order of the presiding judge on November 11, 2014.

C. On November 20, 2014, the Plaintiff filed a lawsuit of demurrer against the grant of execution of the instant case on the grounds that the Plaintiff did not violate the duty to allow perusal and copying of the instant books and documents.

2. Determination as to whether a lawsuit of demurrer against the grant of execution clause of this case is lawful (Defendant’s ground of appeal No. 2)

A. According to Articles 45, 30(2) and 31 of the Civil Execution Act, a lawsuit of demurrer against a grant of execution clause may be instituted when a debtor contests an executory power of the judgment based on the fact that it has been attested in relation to a grant of execution clause or contests an executory power of the judgment based on a recognized succession, in cases where the execution clause has been granted by submitting documents attesting the fulfillment of the condition is attached to the execution of judgment when the creditor proves that such condition has been fulfilled, and where the execution clause has been granted for the creditor’s successor indicated in the judgment or for the execution against the debtor’s successor indicated in the judgment (see Supreme Court Decision 2014Da225038, Aug. 18, 2016).

In order for a creditor to enforce a decision of indirect compulsory performance against the obligation to act in the military unit as an executive title, an execution clause must be obtained (see Supreme Court Order 2008Ma1608, Dec. 24, 2008).

In a case where an obligor violates the obligation to allow perusal and copying of books or documents as an incidental act obligation under Article 261(1) of the Civil Execution Act in the text of an indirect compulsory performance order against an executive title ordering the permission of perusal and copying of books or documents, if the obligor orders the payment of compensation pursuant to the text of an indirect compulsory performance order, the obligor does not have the obligation to allow perusal and copying of specific books or documents only when the obligee demands perusal and copying of the books or documents, or the obligee does not have the obligation to provide the relevant books or documents first to the obligee even without the obligee’s demand. Therefore, it is reasonable to deem that the obligation to pay compensation ordered in such indirect compulsory performance order is indefinite. Therefore, the indirect compulsory performance order is subject to the condition under Article 30(2) of the Civil Execution Act in executing the order. In order for the obligee to prove that the conditions have been fulfilled, the obligee’s demand for perusal and copying of specific books or documents, and that the specific books or documents constitute account books or documents ordering perusal and copying of the original executive title, etc. In such case, the execution clause shall be given within the scope of compulsory execution clause.

B. We examine in light of the above legal principles. The provisional disposition order of this case is an order to allow the Plaintiff to peruse and copy the account books and documents of this case, and if violated, the order shall be issued to the Defendant to pay compensation in one million won per day. In light of the form and contents of the order, the part of the decision of indirect compulsory enforcement in the provisional disposition order of this case is determined whether the Defendant demanded perusal and copy of the account books and documents of this case depending on whether or not the Defendant violated the obligation to allow perusal and copy of the account books and documents of this case. Accordingly, the decision of indirect compulsory enforcement of this case constitutes a case where the issue of the obligation to pay compensation and the time and scope thereof are uncertain, and the conditions under Article 30(2) of the Civil Execution Act are attached thereto. In this case, the Defendant may be granted indirect compulsory execution clause to the purport that the Plaintiff did not demand perusal and copy of the account books or documents of this case, and that the account books or documents requested by the Defendant constitute the permission for perusal and copy of the account books and documents of this case. Therefore, the Plaintiff brought an action of indirect compulsory execution against the execution clause of this case.

Examining the reasoning of the lower judgment in light of the aforementioned legal principles and records, although the lower court’s reasoning was inappropriate, the lower court was justifiable in its conclusion that the lawsuit of objection against the grant of execution clause of this case was lawful. In so doing, contrary to what is alleged in the grounds of appeal, the lower court did not err by misapprehending the legal doctrine regarding the requirements for litigation against

3. Determination as to whether the Plaintiff violated the Plaintiff’s duty to allow perusal and copy of the bond register (the Plaintiff’s grounds of appeal Nos. 1 through 3)

A. If an order of permission for inspection or copying of a specific account book or document was issued in a provisional disposition decision, it is based on the premise that the existence of the pertinent account book or document is substantiated. Therefore, in order for an obligor to assert that the pertinent account book or document does not violate the duty of permission for inspection or copying as the compulsory execution based on the provisional disposition decision does not exist, the fact that the account book or document does not exist should be attested.

According to the reasoning of the judgment below, the fact that the bond register is included in the account books and documents of this case that ordered perusal and copy in the provisional disposition decision of this case. Therefore, in order to claim that there is no bond register among the provisional disposition decision of this case, the Plaintiff did not violate the duty of allowing perusal and copy because there is no bond register among the provisional disposition decision of this case.

Examining the reasoning of the lower judgment in light of the aforementioned legal principles and records, the lower court’s judgment was justifiable, which determined that there was no evidence to support the Plaintiff that the bond register did not exist. In so doing, contrary to what is alleged in the grounds of appeal, the lower court did not err by misapprehending the legal doctrine on presumption and thereby adversely affecting

B. Furthermore, the lower court determined to the effect that the Plaintiff violated the duty of allowing perusal and copy of the bond register ordered in the instant provisional disposition order, since it was acknowledged that the Plaintiff did not provide the bond register even after receiving the Defendant’s request for perusal and copy of the bond register.

Examining the reasoning of the lower judgment in light of the relevant legal principles and records, contrary to what is alleged in the grounds of appeal, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on the duty to allow perusal and copying of books

4. Whether the plaintiff violated the decision of provisional disposition of this case (the defendant's ground of appeal Nos. 1 and 3)

The lower court determined that the Plaintiff did not violate the duty of allowing perusal and copy of the pertinent account books and documents on the remainder of the account books and documents, other than the bond register, or that the Plaintiff did not violate the duty of allowing perusal and copy.

In light of the above legal principles, it is inappropriate for the court below to determine that there is no evidence to acknowledge the existence of some of the books and documents of this case. However, since the defendant demanded the plaintiff to peruse and copy other books and documents in the same date, so long as it is recognized that the plaintiff violated the duty of allowing perusal and copy of the bond register to allow perusal and copy of the books and documents of this case, the legitimacy of the judgment below as to the remainder of the books and documents of this case does not affect the conclusion of the judgment. Therefore, the ground of appeal on this part is without merit, without

5. Determination on the scope of compulsory execution of the instant provisional disposition (Defendant’s ground of appeal No. 4)

A. In the event that a provisional disposition ordering the performance of an obligation with respect to the duty to act in the military unit is rendered by setting the period for the performance of the obligation, the provisional disposition order is invalid upon the lapse of the period for the performance of the obligation specified in the provisional disposition order, and the provisional disposition order becomes invalid upon termination of the effect of the provisional disposition (see, e.g., Supreme Court Decision 2013Da80627, Apr. 7,

B. We examine in light of the above legal principles. Since the decision of provisional disposition of this case requires the plaintiff to allow the defendant to peruse and copy the account books and documents of this case for 30 days except for legal holidays from the date on which the decision was delivered to the plaintiff, the decision of provisional disposition of this case becomes invalid upon the lapse of 30 days. Accordingly, the damages ordered in the decision of provisional disposition of this case after the provisional disposition of

The lower court determined that the part of the decision of indirect compulsory performance among the instant provisional disposition determination was that the Plaintiff shall pay compensation at the rate of one million won per day in cases where the Plaintiff violated the duty of allowing perusal and copy of the instant provisional disposition for the said thirty-day period. Examining the reasoning of the lower judgment in light of the aforementioned legal principles and records, the lower court did not err by misapprehending the legal doctrine on the allowable scope of compulsory execution, contrary to what is alleged in the grounds of

6. Conclusion

Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Noh Tae-tae (Presiding Justice)