2017 Gohap893 Execution Clause

1. A;

2.B

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32. AF;

33. AG;

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35. Al;

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37. AK;

38.AL

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43.A Q

4.AR

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52. AZ;

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54.B

5. BC

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90.Cl

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DL Regional Housing Association

February 27, 2018

March 20, 2018

1. The Seoul High Court 2008Na78714 mediation statement between the plaintiffs and the defendant

For compulsory execution against the defendant, Grade V, V, V, etc. shall grant the execution clause to the plaintiffs.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Basic facts

A. On April 17, 2003, the Defendant was established for the purpose of newly constructing apartment units in the Guri-si and 79 lots of land (hereinafter “the instant company business”). The regional housing association that obtained authorization from the Guri-si market on April 17, 2003 is different.

B. The Plaintiffs filed a lawsuit against the Defendant for confirmation of the status of a member against the District Court 2007Gahap4827, and the above court rendered a dismissal ruling on July 11, 2008. The Plaintiffs appealed as Seoul High Court 2008Na78714, and at the above appellate court, the conciliation of the following (hereinafter referred to as “instant conciliation”) was established on July 28, 2009.

1. In order to repay the amount of KRW 17,00,000 in each of the above claims of the plaintiffs CF, CK, CK, CK, DA, DK, K, AG, Q Q and BG, and to pay KRW 2,273,00,00 in each of the above claims of the plaintiffs against the defendant who will be determined through the settlement with the defendant in the future, for the payment of KRW 2,273,00,000 in the sum of the subscription fees and service expense refund claims of the plaintiffs, the defendant shall pay KRW 2,273,00,000 in each of the above claims of the plaintiffs to the defendant who will be settled through the settlement with the defendant as of July 28, 209, and the defendant shall transfer the above claims of the plaintiffs to the plaintiffs, and the defendant shall pay KRW 17,00,000 in each of the above claims of the plaintiffs, the defendant shall pay KRW 35,000 in each of the above claims of the plaintiffs, the defendant's delay, CU.

[Ground of recognition] Facts without dispute, Gap evidence 1, 4, 5, Eul evidence 1 (including number ; hereinafter the same shall apply) and the purport of the whole pleadings

2. The parties' assertion

A. The plaintiffs' assertion

The plaintiffs acquired the claims of KRW 2,273,00,00 against the defendant of the intervenor to the defendant of the conciliation intervenor under Article 1 (1) of the conciliation protocol of this case. The phrase "the defendant shall pay the plaintiffs the claims to the plaintiffs within one month after the defendant's approval of the defendant's business plan" in Article 2 (2) of the conciliation protocol of this case constitutes an indefinite term as to the payment time of the claims that the plaintiffs acquired by the plaintiffs. However, the defendant cannot obtain approval of the business plan of this case as to the business of this case any longer because the business site of this case is sold to a third party. Thus, the defendant cannot obtain the approval of the business plan of this case as to the business of this case. As such, since the plaintiffs came to the due date of the claims that the plaintiffs acquired

B. Defendant’s assertion

According to Article 12(1) of the conciliation protocol of this case, the claim against the defendant of the conciliation intervenor against the defendant is transferred in lieu of the payment of the plaintiffs' subscription fees and service fees to the conciliation intervenor.

In addition, since the claim against the defendant of the conciliation intervenor was not confirmed through the settlement of accounts, the plaintiffs' claim against the defendant cannot be deemed as acquiring the defendant of the conciliation intervenor's claim finally. In addition, the subsidiary of "within one month after the approval of the project plan of the defendant" in Paragraph (2) of the conciliation protocol of this case falls under the conditions that are not an indefinite period but an indefinite period. Accordingly, the conciliation protocol of this case should be interpreted as a condition that the plaintiff's claim against the defendant is confirmed through the settlement of accounts in the future and that the defendant's business profit will be verified by the approval of the project plan, so the plaintiffs' claim is without merit.

3. Determination

A. A lawsuit for granting an execution clause is a lawsuit seeking confirmation of the present status of executory power by proving the fulfillment of the conditions attached to an executory title by a creditor (Provided, That the term " condition" in this context, "a wide area rather than the concept under the Civil Act, which includes all facts to immediately bring an action), or the succession of a party cannot be proved (Article 33 and Article 30 (2) of the Civil Execution Act).

B. First of all, the mediation clause of the instant mediation protocol provides that "the mediation intervenor transfers 2,273,00,000 won to the plaintiffs except the amount of claims provisionally attached as of July 28, 2009 to the defendant of the mediation intervenor, and the defendant approves it at the ratio of each of the above claims of the plaintiffs to the defendant of the mediation intervenor for the payment of KRW 2,273,000,000 to the remainder of the plaintiffs' subscription fees of KRW 17,000,00,000 and the total amount of claims for return of service expenses of KRW 2,273,00,00,000 to the defendant of the mediation intervenor to be confirmed through the settlement with the defendant in the future for the payment of KRW 2,273,00,00,000 to the defendant of the mediation intervenor's claims against the defendant as of July 28, 200."

In light of the obligations and obligations between the conciliation intervenor and the plaintiffs and the defendant acknowledged by the purport of body, it is reasonable to view that the plaintiffs, upon the formation of the conciliation of this case, acquired 2,273,00,000 won, excluding the claims provisionally seized as of July 28, 2009 among the claims against the defendant of the conciliation intervenor (the amount of claims against the defendant of the conciliation intervenor exceeds the above claims and the claims provisionally seized as of July 28, 2009). Meanwhile, the defendant asserts that the claims against the defendant of the conciliation intervenor against the defendant of the conciliation intervenor are not transferred in lieu of the payment of claims against the intervenor to the conciliation intervenor, and thus, the claims against the defendant of the conciliation intervenor against the defendant of the conciliation intervenor have not been transferred finally. However, even if the claims are transferred for the repayment of existing debts,

C. Next, as to whether the phrase "within one month after the approval of the Defendant's business plan under Paragraph 2 of the conciliation protocol of this case is a condition or indefinite term after the approval of the Defendant's business plan, Article 2 Paragraph (2) of the conciliation protocol of this case provides that "the Defendant shall pay the Plaintiffs the above claim within one month after the approval of the Defendant's business plan. If delay in performing the above monetary payment obligation, the Defendant shall pay damages for delay at the rate of 20% per annum." In light of the text of Paragraph 1 and Paragraph 2 of the conciliation protocol of this case, the Defendant shall pay the Plaintiffs 2,273,00,000 won without fail. However, it is reasonable to interpret that the time is only one month after the approval of the Defendant's business plan.

(d) If the parties have determined the period for performance when the facts of uncertainness occur, not only when such fact occurs but also when such fact becomes impossible, the period for performance comes due.

In light of the purport of Gap evidence Nos. 8, 9, 16, Eul evidence Nos. 2 and 6 and all pleadings, the defendant entered into a business participation agreement with Eul Co., Ltd. on October 20, 2014 concerning the business of this case on December 9, 2016; Eul entered into a business participation agreement with three other co-sureties as joint and several suretys and entered into the business title transfer agreement with the defendant No. 29 on the premises of this case on December 27, 1989, and it is reasonable to recognize that "the defendant Co., Ltd. 2 acquired the ownership transfer right of this case on the premise that it was impossible for the plaintiff Co., Ltd. 2 to enter into the business title transfer agreement with the defendant No. 2, a joint and several surety, and the defendant Co. 2, a joint and several surety to enter into the business title transfer agreement with the defendant Co. 2, Ltd. on the premises of this case on December 26, 2016."

E. Therefore, regarding the instant protocol of mediation between the Plaintiffs and the Defendant, the officer of the District Court in charge of the Gu Government District Court shall grant an execution clause to the Plaintiffs for compulsory execution against the Defendant.

4. Conclusion

Therefore, the plaintiffs' claim of this case is justified, and it is decided as per the disposition.

Judges Kim Jong-Un

Judge Lee Young-young

Judges Jeong Dong-ju