Whether only filing a lawsuit for confirmation of existence of an obligation may be deemed to have satisfied the requirements for provisional disposition under Article 46(2) of the Civil Execution Act (negative)

A provisional disposition under Article 46(2) of the Civil Execution Act is to seek the invalidation of a final and conclusive judgment or executive title having the same effect as such, or to seek a provisional disposition prior to the final and conclusive judgment is rendered by the court of the lawsuit in the remedy procedure, etc. disputing the ownership of an object, etc. As such, a provisional disposition is to temporarily suspend compulsory execution on the premise that a final and conclusive judgment, such as a judgment on the objection to a claim, may finally deny compulsory execution against the relevant object. Therefore, even if a lawsuit seeking confirmation of existence of an obligation, which is not recognized as such, cannot be said to have satisfied the requirements for provisional disposition under the said Article.

Article 46(2) of the Civil Execution Act

Supreme Court Order 81Ma292 dated August 21, 1981 (Gong1981, 14292) Supreme Court Order 2003Ga74 dated September 8, 2003 (Gong2003Ha, 2145)

Applicant

Respondent

Daegu High Court Order 2014Kaga76 dated November 18, 2014

The special appeal is dismissed.

We examine the special grounds for appeal.

1. Provisional disposition under Article 46(2) of the Civil Execution Act is to seek the invalidation of a final and conclusive judgment or executive titles having the same effect as such, or to seek a provisional disposition until the court of the lawsuit renders a final and conclusive judgment in the remedy procedure, etc. disputing the ownership of an object, etc., and to temporarily suspend compulsory execution on the premise that the final and conclusive judgment, such as the judgment on objection to a request, etc., may finally refuse compulsory execution on the relevant object (see Supreme Court Order 81Ma292, Aug. 21, 1981; Supreme Court Order 2003Da74, Sept. 8, 2003, etc.). Therefore, even if winning a lawsuit for confirmation of existence of an obligation, the mere fact that a lawsuit for confirmation of existence of an obligation, which is not recognized as such, is not enough to deem that the requirements for provisional disposition under the above Article have been satisfied.

2. In the same purport, the court below is just in holding that the application of this case seeking suspension of compulsory execution by the above notarial deed is unlawful on the ground that the special appellant only filed a lawsuit seeking confirmation of non-existence of an obligation based on the notarial deed at the time of original adjudication, and that he did not raise an objection, and there is no error of misapprehending the legal principles as to Article 46(2) of the Civil Execution Act (in addition, the grounds alleged by the special appellant do not fall under the grounds for special appeal as stipulated in Article 49(1) of the Civil Procedure Act).

3. Therefore, the special appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Shin (Presiding Justice)