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1. The instant lawsuit shall be dismissed.
2. The costs of lawsuit shall be borne by the Plaintiff.
Reasons
1. Basic facts
A. The Defendant filed against the Plaintiff’s father B a claim against the Defendant for the payment order of KRW 16,294,114 and KRW 4,54,562 from November 1, 2010 to the full payment order. The said court issued the payment order on February 17, 2014, and on March 7, 2014, the said payment order (hereinafter “instant payment order”) became final and conclusive as of March 7, 2014 because B did not raise any objection thereto.
B. Based on the executory exemplification of the instant payment order, the Defendant filed a motion for seizure of the corporeal movables listed in the attached list (hereinafter “instant corporeal movables”), etc., and the enforcement officer of the Seoul Eastern District Court seized the instant corporeal movables under the heading 2018.236.
[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 and 2, the purport of the whole pleadings
2. Whether the lawsuit of this case is lawful
A. The plaintiff's assertion that the corporeal movables of this case are not owned by B, but owned by the plaintiff, who resided in the same house as the plaintiff's family member, and purchased with the plaintiff's money. Thus, the defendant's above compulsory execution against the corporeal movables of this case should be denied.
B. An ex officio determination as to the legitimacy of the instant lawsuit is a lawsuit seeking an objection against the compulsory execution that is practically underway by a third party who has the right to prevent ownership, transfer, or transfer of the subject matter of compulsory execution against the said third party’s right. As such, in a case where a lawsuit by a third party is filed after the said compulsory execution is completed, or compulsory execution that existed at the time when the lawsuit by a third party was filed, is terminated during the said lawsuit, it is unlawful as there is no benefit of the lawsuit (see, e.g., Supreme Court Decision 96Da37176, Nov. 22, 1996). If a request for auction is withdrawn, the effect of the seizure is extinguished and the auction procedure is conducted.