(영문) 창원지방법원진주지원 2016.11.23 2016가합10691

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(영문) 창원지방법원진주지원 2016.11.23 2016가합10691

청구이의

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1. The plaintiff's claim is dismissed.

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

Reasons

1. Basic facts

A. On September 6, 2012, the Plaintiff leased KRW 170,000,00 to C at interest rate of 24% per annum, and on October 6, 2012, the Plaintiff drafted and received from C a notarial deed under a monetary loan agreement with the purport that the said loan obligation is not satisfied as of October 6, 2012, when the Plaintiff failed to perform its obligation under Article 1206 of the 2012, the Plaintiff was immediately subject to compulsory execution.

B. As between C and C on December 31, 2012, the Defendant approved that a notary public’s D office was liable for a debt of KRW 220,00,000 to the Defendant with a partial payment out of the sales contract amount, and that such payment shall be made until January 10, 2013, and where the repayment is delayed, the Defendant shall pay the delayed payment at a rate of 20% per annum. In the event of failure to perform the above obligation, the Defendant drafted a notarial deed of a performance contract to the effect that there is no objection even if it was immediately subject to compulsory execution.

(hereinafter referred to as the "notarial deed of this case". The defendant applied for a compulsory auction for the original district court Jinwon Branch E with the title of execution of the notarial deed of this case as the title of execution.

C. C is currently insolvent.

[Ground of recognition] Facts without dispute, entry of Gap 1, 4, and 5 evidence, purport of the whole pleadings

2. The Plaintiff’s assertion of this case is null and void by a conspiracy with the Defendant and C, even though there is no substantial debt.

The plaintiff, as a creditor of the insolvent C, sought a non-permission of compulsory execution based on the notarial deed of this case against the defendant in subrogation of C.

3. Determination

A. Where the Plaintiff asserts that the claim was not constituted by the Defendant in a lawsuit seeking objection, the Plaintiff is liable to prove the cause of the claim to the Defendant, and where the Plaintiff asserts the fact that the claim constitutes a cause for disability or extinction, such as the invalidity or extinguishment of the claim as a false declaration of agreement, the Plaintiff is entitled to do so

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