(영문) 대전지방법원 2017.10.24 2017가단17648

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(영문) 대전지방법원 2017.10.24 2017가단17648

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1. The instant lawsuit shall be dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

Reasons

1. The Plaintiff seeks confirmation that the Plaintiff’s obligation stated in the claim against the Defendant was exempted due to the same reasons as stated in the attached Form.

2. We examine ex officio the lawfulness of the instant lawsuit.

If a lawsuit for confirmation is lawful, there must be a benefit of confirmation as a requirement for the protection of rights, and the benefit of confirmation is recognized only when it is the most effective means to obtain a judgment from the defendant to eliminate such apprehension and danger, in danger, in the Plaintiff’s rights or legal status, and in removing such apprehension and risk.

According to the records, the defendant applied for the seizure and collection order of the claim against the plaintiff against the financial institution as KRW 56,00,000 ( principal KRW 20,000, interest KRW 36,000,000) of the Daejeon District Court 2009TTTT 11929 with the title of execution of the notarial deed No. 2659 against the plaintiff as the title of execution of the notarial deed of the Daejeon General Law Firm 2003, and received a seizure and collection order of the same contents from the above court on October 27, 2009.

According to the above facts of recognition, the defendant's claim against the plaintiff is based on an executory notarial deed, an executory title, and the fact that immunity was granted in the event that there is an executory title as above does not lose executory power as a matter of course, but is merely a substantive reason for the above immunity to file a lawsuit claiming objection.

(see Supreme Court Order 2013Ma1438, Sept. 16, 2013). Therefore, even though the Plaintiff could immediately seek the exclusion of executory power against the Defendant by filing a lawsuit of demurrer against a notarial deed, seeking confirmation of exemption without filing an action cannot be deemed as an effective and appropriate means to eliminate legal uncertainty risks, and thus, the benefit of confirmation is not recognized.

3. If so, the plaintiff's lawsuit of this case is unlawful, and thus, it is dismissed.

참조판례

-대법원 2013. 9. 16.자 2013마1438 결정

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