(영문) 대구지방법원 2017.12.22 2017가단23551

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(영문) 대구지방법원 2017.12.22 2017가단23551

면책확인

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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's assertion sought confirmation that the obligation stated in the plaintiff's claim against the defendant was exempted due to the same reasons as stated in the attached Form.

2. If a lawsuit for confirmation is lawful ex officio as to the legitimacy of the lawsuit in this case’s lawsuit, there should be interests in confirmation as a requirement for protection of rights, and the benefits of confirmation should be recognized only when the defendant is the most effective means to receive a judgment of confirmation in order to eliminate the risks of the plaintiff’s rights or legal status, and there is currently unstable danger in the plaintiff’s rights or legal status.

However, according to the records of this case, the defendant filed a lawsuit against the plaintiff as Daegu District Court 2008Kadan39349 and sentenced "167,449,460 won and the amount at the rate of 22% per annum from December 31, 2001 to the date of complete payment" on September 26, 2008. The judgment of this case is recognized that it became final and conclusive around that time.

As above, the fact that there is enforcement force of immunity in the event of enforcement title does not automatically lose its effect, but merely becomes a substantial reason for the above immunity to file a lawsuit seeking objection (see Supreme Court Order 2013Ma1438, Sept. 16, 2013). Even if the Plaintiff is confirmed to have the effect of immunity by judgment, the Plaintiff’s unstable risk that it may be subject to compulsory execution from the Defendant is still not removed.

Therefore, even though the Plaintiff could immediately seek the exclusion of the executory power as a lawsuit of demurrer against the instant payment order, seeking the confirmation of exemption without filing a claim cannot be deemed as an effective and appropriate means to eliminate legal uncertainty risks, and thus, the benefit of confirmation is not recognized.

3. As such, the instant lawsuit is unlawful and thus, it is so decided as per Disposition.

참조판례

-대법원 2013. 9. 16.자 2013마1438 결정

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