beta
Text
1. The defendant's appeal is dismissed.
2. The costs of appeal shall be borne by the Defendant.
Purport of claim and appeal
1..
Reasons
1. The reasoning for this part of the basic facts is the same as the corresponding part of the reasoning of the judgment of the court of first instance, and thus, they are cited in accordance with the main sentence of Article 420 of the Civil Procedure Act.
2. Judgment on the main defense of this case
A. The gist of the main defense of this case is that the instant lawsuit falls under a duplicate suit related to the case No. 2015da213291 of the Incheon District Court (hereinafter “the instant lawsuit”) or is unlawful due to res judicata effect.
② In order for the Plaintiff to file a claim for restitution of unjust enrichment against the Defendant, at least the same time, the Plaintiff constitutes “creditor entitled to receive distribution” under Article 148 of the Civil Execution Act in the procedure of the auction case. However, the Plaintiff does not constitute “creditor entitled to receive distribution” in the procedure of the auction case.
Therefore, the instant lawsuit is unlawful.
B. First of all, a double lawsuit is applicable to the case in which the court is pending, and since the preceding judgment has already become final and conclusive in the previous lawsuit, the lawsuit in this case cannot be deemed to constitute a duplicate lawsuit.
In addition, the plaintiff is seeking the return of unjust enrichment against the defendant as the provisional seizure is revoked after the date of closing argument of the fact-finding court in the previous suit, so it cannot be deemed that res judicata of the previous suit has been affected.
Therefore, this part of the defendant's main defense is without merit.
C. In a lawsuit for the performance of judgment as to this safety resistance 2, the plaintiff's standing as the party itself is replaced by the judgment as to the propriety of the claim. Thus, the claimant for his/her right to claim performance is a legitimate plaintiff and the person asserted as the obligor is the defendant.
(See Supreme Court Decision 88Meu26499 delivered on July 25, 1989, see Supreme Court Decision 88Meu26499 delivered on July 25, 198).