2014Na8516 Objection

A person shall be appointed.

A person shall be appointed.

Ulsan District Court Decision 2014Ra20614 Decided November 28, 2014

September 9, 2015

October 7, 2015

1. Revocation of a judgment of the first instance;

2. The plaintiff's claim is dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

A notary public against the plaintiff of the defendant does not allow compulsory execution based on No. 3469 of the notarial deed No. 3469 of September 7, 2001 by the defendant against the plaintiff.

2. Purport of appeal

The order is as set forth in the text.

1. Determination on the cause of the claim

(a) Fact finding;

Comprehensively taking account of the overall purport of the arguments in Gap evidence 1, evidence 2, and evidence 4, the defendant engaged in the water purifier sales business may recognize the fact that the defendant, on July 16, 2001, lent 4,50,000 won to C, who is the plaintiff's wife, on September 14, 2001, and the interest rate and delay damages rate at 25% per annum, respectively, and the plaintiff jointly and severally guaranteed the above loan obligations. The plaintiff, at the request of the plaintiff, defendant, and C, the notary public on September 7, 2001, "No. 3469 of the deed of September 7, 2001," the plaintiff and C may recognize that there is no objection even if compulsory execution was conducted immediately at the time of delay in performing the above loan obligations.

B. Determination

According to the above facts, the period of prescription of the Defendant’s claim against the Plaintiff is five years in accordance with Article 64 of the Commercial Act, and it is apparent in the record that the lawsuit in this case was filed on July 25, 201, which was five years after the date on which the lawsuit in this case was due on September 14, 2001, which was due on September 14, 201. Thus, the Defendant’s claim against the Plaintiff in this case based on the Notarial Deed should have expired by prescription, barring any special circumstance. Therefore, the Defendant’s compulsory execution based on the Notarial Deed against the Plaintiff should be rejected.

2. Defendant’s assertion and judgment thereon

A. The assertion

The Defendant asserts that, based on the claim on the instant notarial deed, he forced the Plaintiff’s corporeal movables to perform a part of the obligation on the instant notarial deed, he appropriated the bid price for the payment of a debt on the instant notarial deed, and that, even though he was aware of the progress of the compulsory execution procedure, he did not raise any objection, the Defendant waived the benefit

B. Determination

If the obligor partly repaid an obligation after the completion of the extinctive prescription, barring any dispute as to the amount of the obligation, it shall be deemed that the obligor impliedly admitted the entire obligation, and in such a case, the obligee is presumed to waive its benefit by knowing the fact of the completion of prescription. Therefore, if a creditor holding executive title on the ground of a claim for which the extinctive prescription has already been completed applies for compulsory execution against corporeal movables of the obligor, and the obligor did not make any objection to the compulsory execution until the proceeds from the sale of corporeal movables were delivered to the obligee in the said procedure, and the obligor did not make any objection to the said claim, barring any special circumstances, such as where the obligor was unaware of the obligor’s failure to perform the compulsory execution procedure, the obligor may be deemed to waive the benefit of extinctive prescription against the claim. In order to deem that the obligor’s proceeds from the sale of corporeal movables were delivered to the obligee and have been partially repaid (see Supreme Court Decision 2010Da6345, May 13, 2010).

In each of the above statements, Gap evidence Nos. 1, Eul evidence No. 2, Eul evidence No. 5, and the whole purport of the pleadings, the defendant, on the basis of the notarial deed of this case, around June 24, 2011, after receiving KRW 295,750 out of the proceeds of the sale of corporeal movables from the above court on June 24, 201 and putting them up for the repayment of part of the debt under the notarial deed of this case, it is recognized that the plaintiff did not raise any objection despite being aware of the fact that the notarial deed of this case was in progress. According to the above facts, the plaintiff's assertion can be ratified as waiver of the extinctive prescription by impliedly approving the whole debt with the knowledge of the completion of the prescription period.

3. Conclusion

If so, the plaintiff's claim is dismissed due to the lack of reason, and the judgment of the court of first instance is unfair, so the judgment of the court of first instance is revoked and the plaintiff's claim is dismissed. It is so decided as per Disposition.

Judge Doing Judge Male Lapap Ma

Judges Cho Jong-chul

Judges Kim Jong-soo