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(영문) 서울서부지방법원 2016.03.10 2015가단35990
채무부존재확인등
Text

1. The instant lawsuit shall be dismissed.

2. The costs of lawsuit shall be borne by the plaintiff (appointed party).

Reasons

1. The grounds for the plaintiff's claim are as shown in the annexed sheet.

2. Ex officio determination

A. In a lawsuit seeking confirmation of the part of a claim for confirmation of the existence of an obligation, there must be interests in confirmation as a requirement for protection of rights. The benefits of confirmation are recognized only when it is the most effective and appropriate means to obtain a judgment of confirmation against the defendant in order to eliminate the risks of the plaintiff's rights or legal status in danger.

The Plaintiff’s lawsuit of confirmation of existence of the obligation is seeking to confirm the absence of the obligation to return KRW 146,545,338 of the lease deposit accepted by the claim in Seoul Western District Court 2013Gahap3185, the Seoul Western District Court 2013Gahap3185, and it excludes compulsory execution against the Plaintiff’s property by using the above recognition and recognition protocol. Even if the Plaintiff is confirmed by the judgment of confirmation of existence of the above obligation, the mere fact alone does not exclude the executory power of the above recognition protocol, and thus, the Plaintiff’s unstable risk is still not removed. The Plaintiff’s claim of confirmation of existence of the obligation cannot be deemed an effective and appropriate means to eliminate the Plaintiff’s legal uncertainty. Thus, the Plaintiff’s claim for this part is unlawful.

B. The registration of provisional disposition prohibited by the execution of the provisional disposition can only be cancelled by the cancellation of the provisional disposition decision by the execution court or by the cancellation of execution, based on the decision of provisional disposition by the court on the part of the claim for cancellation of provisional disposition registration, and thus, it cannot be withdrawn (see Supreme Court Decision 80Da1872, Dec. 14, 1982). The plaintiff's claim for cancellation of provisional disposition prohibited by the execution court on the attached list 2 is also unlawful.

3. In conclusion, the plaintiff's claim of this case is all unlawful, and thus, it is so decided as per Disposition.

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