[1] Whether an execution clause can be granted to a judgment of invalidation without executory power (negative)

[2] Whether a debtor can assert the grounds for raising an objection as stipulated in Article 44 of the Civil Execution Act in a lawsuit for granting an execution clause (negative)

[1] In order to grant an execution clause against a judgment, it requires that the execution clause be effective and existing. Therefore, the execution clause cannot be granted to a judgment of invalidation without executory power, and this legal principle likewise applies to cases where a lawsuit for grant of execution clause has been instituted under Article 33 of the Civil Execution Act.

[2] A lawsuit for grant of execution clause under Article 33 of the Civil Execution Act is brought to obtain the execution clause by judgment by asserting and proving that, in cases where a creditor is unable to prove matters to be attested by a certificate for the purpose of obtaining the execution clause, the creditor is not subject to the restriction on the method of proof and the executory power based on such reason exists. A lawsuit for objection to a claim under Article 44 of the Civil Execution Act is a lawsuit for excluding the executory power held by the executory power on the ground of an objection raised by the debtor against the claim indicated in the executory power. In light of the purport that the Civil Execution Act recognizes both a lawsuit for objection against grant of execution clause and a lawsuit for objection against a claim, the subject matter of the lawsuit for grant of execution clause should be deemed to have been subject to the requirements for grant of execution clause, including the fulfillment of or succession to the conditions. Therefore, it is not permissible for the debtor to assert in the lawsuit for grant of the execution clause

[1] Article 33 of the Civil Execution Act / [2] Articles 33 and 44 of the Civil Execution Act

Plaintiff (Attorney Ansan-do et al., Counsel for plaintiff-appellant)

Defendant 1 (Attorney Language Charter, Counsel for the defendant-appellant)

Defendant 2

Seoul Eastern District Court Decision 201Na7286 decided September 30, 2011

All appeals are dismissed. The costs of appeal are assessed against each appellant.

The grounds of appeal are examined.

1. Plaintiff’s ground of appeal

In order to grant an execution clause against a judgment, it requires that the executory power of the judgment shall be effective and existing. Therefore, the execution clause may not be granted to a judgment of invalidation which does not have executory power, and this legal principle shall also apply to cases where a lawsuit for grant of execution clause has been instituted under Article 33 of the Civil Execution Act.

According to the reasoning of the judgment below, with respect to the plaintiff's claim against the defendant 2, who is the inheritor of the non-party 1, the court below acknowledged the fact that the judgment was rendered after the non-party 1 died on February 9, 1990, much more than before the non-party 2 filed a lawsuit against the non-party 1 claiming ownership transfer registration against the non-party 1, the Seoul District Court's Dong branch court's 92Ga6837, which was far before the non-party 1 died, and determined that the part of the claim against the non-party 1 in the above judgment is null and void as a matter of course, and that the plaintiff's claim against the defendant 2, who

In light of the above legal principles, the above judgment below is just, and there is no error in the misapprehension of legal principles as alleged in the grounds of appeal.

2. As to Defendant 1’s ground of appeal

A lawsuit for grant of execution clause under Article 33 of the Civil Execution Act is filed for the purpose of obtaining execution clause by judgment by asserting and proving that, in cases where a creditor is unable to prove matters to be attested by a certificate in order to obtain execution clause, the creditor is not subject to the restriction on the method of proof and the executory power based on such grounds exists. A lawsuit for objection to a claim under Article 44 of the Civil Execution Act is a lawsuit for exclusion of the executory power of executive titles on the ground that the debtor raises an objection against the claim indicated in the executive title.

As above, in light of the purport of the Civil Execution Act, in a lawsuit for grant of execution clause and a lawsuit for objection, the subject of examination in a lawsuit for grant of execution clause ought to be deemed to have satisfied the requirements for grant of execution clause, including the fulfillment of conditions or the fact of succession. Therefore, it is not permissible for an obligor to assert in a lawsuit for objection against a claim as provided in Article 44 of the Civil Execution Act the reason for objection

According to the reasoning of the judgment below, Defendant 1’s assertion that Defendant 1 cannot respond to the Plaintiff’s claim for transfer of ownership against Defendant 1, who was indicated in the prior judgment of this case where the Plaintiff sought the grant of succession execution clause against Defendant 1, because the extinctive prescription of the Plaintiff’s claim for transfer of ownership against Defendant 1, which was already completed, cannot be complied with the Plaintiff’s claim for transfer of ownership. The court below rejected Defendant 1’s assertion on the ground that it is not permissible to merely assert the claim as a defense

In light of the above legal principles, the above judgment of the court below is just, and there is no error of law by misapprehending the legal principles as to a lawsuit for granting succession execution clause, as alleged in the ground of appeal.

3. Conclusion

Therefore, all appeals are dismissed, and the costs of appeal are assessed against each appellant. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Poe-dae (Presiding Justice)