(영문) 울산지방법원 2016.07.08 2016가단52486

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(영문) 울산지방법원 2016.07.08 2016가단52486

제3자이의

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1. The instant lawsuit shall be dismissed.

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

Reasons

1. Although the Plaintiff’s attached list of the Plaintiff’s assertion (hereinafter “instant movable”) owned the property, the Defendant, without any grounds, conducted compulsory execution on the instant movable property based on the original copy of the judgment with executory power stated in the purport of the claim (hereinafter “instant compulsory execution”).

Therefore, compulsory execution of this case should not be permitted.

2. We examine the determination on the legitimacy of the instant lawsuit, and the lawsuit of demurrer by a third party is the lawsuit of demurrer by a third party who has the right, such as ownership, against the object of compulsory execution, and the lawsuit of demurrer by a third party who has the right, such as ownership, is the lawsuit of asserting an objection against the compulsory execution that

Therefore, in case where a lawsuit of demurrer against a third party is filed after the compulsory execution concerned is terminated, or compulsory execution which existed at the time when a lawsuit of demurrer against a third party is pending, it is unlawful as there is no benefit of lawsuit

(See Supreme Court Decision 96Da49049 Decided October 10, 1997, etc.). However, there is no dispute between the parties that the compulsory execution of this case was terminated in the course of the lawsuit of this case (However, it is unclear whether the purport of the parties’ statement was terminated in the course of the compulsory execution of this case, but it seems that the date of sale of this case was deemed to have been March 11, 2016 when the compulsory execution of this case is stated in the evidence No. 14, and that the procedure of distribution has been terminated even when the compulsory execution of this case is deemed to have been completed). The lawsuit of this case seeking the refusal of the execution of this case is unlawful as

3. Thus, the plaintiff's lawsuit of this case is dismissed.

참조판례

-대법원 1997. 10. 10. 선고 96다49049 판결

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