[1] Whether a lawsuit of demurrer may be brought on the grounds arising before the mediation is completed (negative)

[2] Whether a lawsuit seeking rejection of an application for seizure and assignment order is legitimate (negative)

[1] Where the conciliation protocol is an executive title, the grounds for raising an objection can not be asserted unless the conciliation is effected after the conciliation is completed, and only the grounds arising after the conciliation is completed may be asserted as an action for raising an objection.

[2] An immediate appeal may be raised against a judgment on the application for a seizure and assignment order of claims, and a lawsuit seeking the rejection of the above application is unlawful.

[1] Article 44 of the Civil Execution Act / [2] Article 229 (6) of the Civil Execution Act

Edivers

Private Senior Security Office

Cheongju District Court Decision 2003Gadan22349 delivered on February 27, 2004

July 22, 2004

1. Of the judgment of the court of first instance, Paragraph 2 of this Article is amended as follows.

A. The defendant's Cheongju District Court 200Na4730 dated April 23, 2001 against the plaintiff is dismissed as to the part of 4,00,000 won among the claims demanding the refusal of compulsory execution under the conciliation protocol against the plaintiff.

B. The plaintiff's remaining claims are dismissed.

2. The plaintiff's remaining appeal is dismissed.

3. The total costs of the lawsuit shall be borne by the plaintiff.

The judgment of the court of first instance is revoked. The defendant's motion to the plaintiff shall be dismissed from compulsory execution in accordance with the conciliation protocol 2000Na4730 dated April 23, 2001. The defendant's motion to seize and assign claims shall be dismissed based on the executory exemplification of the above conciliation protocol.

1. Basic facts

The following facts are not disputed between the parties, or can be acknowledged in full view of the purport of the entire pleadings in Gap evidence No. 1 (the same as Eul evidence No. 1), Gap evidence No. 3 and 7.

A. On April 23, 2001, the Cheongju District Court Decision 2000Da767770, Cheongju District Court Decision 2000Na4730, Cheongju District Court Decision 5268, Cheongju District Court Decision 97Da5268, Jul. 4, 1997 (the plaintiff shall pay to the defendant 14 million won and 25% interest per annum from May 17, 1997 to the day of full payment) which the plaintiff filed against the defendant, "the defendant shall not execute compulsory execution," and the part of the above 25% interest per annum from May 17, 1997 to the day of full payment (the above 14,000,000 won to the defendant 14,000,000 won to the day of full payment) was not constituted as compulsory execution, and the above 14,000,000 won to the portion of the above 16,008.

B. On October 30, 2003, based on the executory exemplification of the above protocol, the Defendant applied for compulsory execution against the corporeal movables owned by the Plaintiff as the Cheongju District Court 2003No2691 on October 30, 2003, and on November 29, 2003, the Cheongju District Court 2003 No. 2993 on November 29, 2003.

C. On the other hand, on November 18, 2003, the first instance court deposited the above amount of KRW 4,000,000 to the Republic of Korea (a public official in the jurisdiction of Cheongju District Court) on the condition that "the compulsory execution against corporeal movables shall be suspended until the court of first instance is sentenced, on the condition that "the amount of KRW 4,00,000" is deposited pursuant to the plaintiff's application for suspension of compulsory execution (203da1164)."

2. The assertion and judgment

A. The plaintiff's assertion

In relation to the conciliation of this case, the defendant paid KRW 5,00,000 deposited by the Cheongju District Court 99,000,000, and collected KRW 15,850,680 among the claims of the plaintiff, upon receiving a seizure and collection order, the plaintiff's obligation to the defendant following the conciliation was all extinguished. Therefore, compulsory execution based on the executory exemplification of the conciliation protocol of this case shall be denied, and the defendant's application for seizure and assignment order of the above claims shall be dismissed.

(b) Markets:

(1) Judgment on the non-permission of compulsory execution

(A) First of all, ex officio, the objection suit seeking the exclusion of executory power against the title of debt does not have a benefit to seek the denial of compulsory execution after the compulsory execution is completed. In light of the purport of the entire pleadings in Gap evidence No. 7, the defendant applied for the attachment and assignment order of the claim against the Republic of Korea by the Cheongju District Court 2003TT293 regarding the plaintiff's right to claim the recovery of deposit money stated in Paragraph (C) based on the executory exemplification of the conciliation protocol of this case, and the above court accepted it on December 1, 2003 and issued the attachment and assignment order of the above amount KRW 4,000,000. The above order can be recognized as having become final and conclusive by delivery to the Republic of Korea at that time, and there is no counter-proof. Therefore, the above assignment order of the plaintiff's claim seeking the denial of compulsory execution based on the above conciliation protocol is unlawful as there is no benefit in litigation as to the above amount terminated by the confirmation of the above assignment order of claim.

(B) Next, in the case where the public health department and the mediation protocol are executive titles, the grounds for raising an objection can not be asserted unless the mediation is effected after the mediation is completed, and only for the reasons arising after the mediation is completed, a claim objection can be asserted as an action of objection. Thus, there is no evidence to prove that the Defendant paid the deposited money of the Plaintiff or collected the Plaintiff’s claim, as alleged by the Plaintiff after the mediation of this case was established, and there is no evidence to prove that the Defendant paid the deposited money of the Plaintiff or collected the Plaintiff’s claim, the Plaintiff’s above assertion about the portion exceeding the amount of KRW 4,00,000,000, out of the amount to be paid pursuant to the above

(2) Determination on the dismissal claim of the application for attachment and assignment order

An immediate appeal may be raised against a judgment on the application for a seizure and assignment order (Article 229(6) of the Civil Execution Act), and the filing of a lawsuit seeking dismissal of the above application is unlawful (the same shall apply as mentioned above, if the assignment order based on the application for the above assignment order was already issued and confirmed after the issuance of the order).

3. Conclusion

Therefore, the part of the plaintiff's objection claim as to gold 4,00,000 won and the part of the claim to dismiss the application for the attachment and assignment order of claims are unlawful and dismissed, and the remaining part of the plaintiff's claim is dismissed as it is without merit. Since the part of the claim objection among the judgment of the court of first instance is unfair with some conclusion, it is so modified as above, and the remaining part of the claim is just as it is concluded, and it is so decided as per Disposition by the plaintiff's appeal as to that part.

Judges Park Jong-young (Presiding Judge)