[1] Meaning of “court of first instance” under Article 44(1) of the Civil Execution Act, and whether a lawsuit of demurrer against a claim filed by a collegiate panel of a district court against a decision of indirect compulsory performance or a lawsuit of objection against grant of execution clause is subject to the exclusive jurisdiction of the said collegiate panel (affirmative)

[2] In a case where a provisional disposition ordering the performance of the duty to act in the military unit by setting the period for the performance of the duty to act, whether the provisional disposition order becomes invalid upon the lapse of the above period (affirmative)

[1] Article 44(1) of the Civil Execution Act provides that “A person who intends to raise an objection against a claim finalized by a judgment shall file a lawsuit of demurrer with the court of first instance regarding the claim in the judgment.” The main sentence of Article 45 provides that the said provision shall apply mutatis mutandis to a lawsuit of objection against grant of execution clause. Here, “the court of first instance” refers to the court that rendered the judgment on the claim indicated in the judgment, i.e., the right to claim realized by compulsory execution based on the judgment, i., the right to claim, and that is, the right to claim is directly divided into an exclusive jurisdiction. Meanwhile, Article 56 subparag. 1 of the Civil Execution Act provides that “the judgment against which an appeal may be filed only,” and Article 57 provides that Article 44 and 45 of the Civil Execution Act shall apply mutatis mutandis to compulsory execution based on such title. Accordingly, a lawsuit of objection against a decision of indirect compulsory enforcement rendered by the collegiate court of a district court, or a lawsuit of objection against grant of execution clause, belongs to the collegiate panel of the district

[2] In a case where a provisional disposition ordering the performance of an obligation with respect to the obligation to act by a unit is issued for a specified period of time, the provisional disposition order is no longer effective as an enforcement title upon the lapse of the performance period stipulated in the provisional disposition order. Therefore, even if a provisional disposition order is issued based on such provisional disposition order after the expiration of the performance period stipulated in the provisional disposition order, the decision of indirect compulsory performance is based on the invalid enforcement title and becomes final and conclusive, and such decision of indirect compulsory performance does not meet the requirements for compulsory execution, and thus, it cannot be effective as an enforcement title as to the compensation stipulated in the indirect compulsory performance order. In this case, the debtor can seek the revocation of the execution clause

[1] Articles 44(1), 45, 56 subparag. 1, and 57 of the Civil Execution Act / [2] Articles 261, 283, 300, and 301 of the Civil Execution Act

[2] Supreme Court Order 2015Ma1578 Decided March 15, 2016

The rehabilitation debtor, who is the litigation taking-off of the other party, is the administrator of the other party, who is the non-party, who is the administrator of the other party, as the lawsuit taking-off of the other party, the LWWn Co., Ltd. (LLC LLC, Attorneys Cho Jong-soo et al., Counsel for the plaintiff

Defendant (Attorney Park Young-chul, Counsel for the defendant-appellant)

SPP Co., Ltd.

Changwon District Court Decision 2012Na7599 decided September 11, 2013

The judgment of the court of first instance is reversed, and the judgment of the court of first instance is revoked. The case is transferred to the Jinwon District Court Panel Division.

The judgment on the grounds of appeal shall be made ex officio.

1. Article 44(1) of the Civil Execution Act provides that “A person who intends to raise an objection against a claim finalized by a judgment shall file a lawsuit of demurrer to the court of judgment in the first instance.” The main text of Article 45 provides that the said provision shall apply mutatis mutandis to a lawsuit of objection against grant of execution clause. Here, “the court of judgment in the first instance” refers to a court which rendered a judgment on a claim indicated in the judgment, i.e., a title of execution, that is, a claim to be realized by compulsory execution based on the judgment, and that is, directly divided jurisdiction. Meanwhile, Article 56 subparag. 1 of the Civil Execution Act provides that “the judgment against which an appeal may be filed only” as one of the title of execution, and Article 57 provides that Article 44 and 45 of the Civil Execution Act shall apply mutatis mutandis to compulsory execution based on such title. Accordingly, a lawsuit of objection against a decision of indirect compulsory enforcement rendered by a collegiate panel of a district court, or a lawsuit of objection against grant of execution clause, belongs to the collegiate panel of the district court.

2. Review of the reasoning of the lower judgment and the record reveals the following facts.

A. On May 4, 2011, the Defendant filed an application for provisional disposition against the Plaintiff (the former name before the change: Ta LWn L&T Co., Ltd.; hereinafter “Plaintiff”) to allow the Plaintiff to peruse and copy the accounting books, and on June 16, 201, the original copy of the decision was served on the Plaintiff on June 20, 201 (hereinafter “the instant provisional disposition order”) to the effect that “the Plaintiff shall allow the Defendant to peruse and copy the accounting books and documents in the separate sheet of the lower judgment for 10 days except for legal holidays from the day following the service of this decision.”

B. On July 7, 2011, the Defendant filed an application against the Plaintiff for indirect compulsory enforcement with respect to the instant provisional disposition order as Jinju support 201tae331, and on July 21, 201, the Jinju Support Panel Division shall allow the Defendant to peruse and copy the books and documents in the separate sheet of the lower judgment for ten days, excluding legal holidays, from the day following the service of this decision. If the Plaintiff fails to perform his/her obligation within the said period, the Plaintiff shall pay the amount calculated at the rate of five million won a day from the day following the expiration of the said period until the completion of its performance (hereinafter “instant indirect compulsory enforcement order”). The original copy of the decision was delivered to the Plaintiff and the Defendant on July 30, 201, and the Defendant was granted indirect compulsory enforcement on September 21, 2019 and the execution clause was granted on September 17, 2011.

C. Accordingly, the Plaintiff brought a lawsuit of demurrer against the grant of execution clause of the instant case to Jinju support, and the first instance judgment was rendered on May 11, 2012 by the Jinju support single judge.

D. Meanwhile, on February 15, 2016, the Plaintiff was ordered to commence rehabilitation proceedings by Changwon District Court 2016 Ma10006, and the Nonparty was appointed as the administrator of the Plaintiff who is a debtor for rehabilitation and took over the instant lawsuit. On January 4, 2017, the Plaintiff took over the instant lawsuit.

3. Examining these facts in light of the legal principles as seen earlier, since the decision of indirect compulsory performance of the instant case was rendered by the Jinju Support Panel Division, the lawsuit of objection against the grant of execution of the instant case is subject to the exclusive jurisdiction of the Jinju Support Panel Division.

Nevertheless, the court below dismissed the appeal against the judgment of the court of first instance with the exception that the judgment of the court of first instance violated exclusive jurisdiction, and further determined the objection to the claim for the decision of indirect compulsory performance of this case which was added in the court of first instance. In so doing, the court below erred by misapprehending the legal principles as to exclusive jurisdiction.

4. Meanwhile, in a case where a provisional disposition ordering the fulfillment of an obligation during a specified period with respect to the obligation to act in the military unit, upon the lapse of the period of performance stipulated in the provisional disposition’s decision, the provisional disposition’s effect becomes null and void upon the lapse of the period of performance stipulated in the provisional disposition’s decision (see, e.g., Supreme Court Order 2015Ma1578, Mar. 15, 2016). Therefore, even if a provisional disposition order was issued and confirmed based on the provisional disposition’s order after the expiration of the period of performance stipulated in the provisional disposition’s decision, the indirect compulsory performance order is based on the invalid title and fails to meet the requirements for compulsory execution, and thus, the indirect compulsory performance order cannot be effective as an executive title with respect to the compensation determined by the indirect compulsory performance order. In such cases, the debtor

According to the above facts, the instant provisional disposition order is a content that allows the Plaintiff to peruse and copy the books and documents from June 21, 201 to June 10, 201, excluding holidays, and thus, the validity of the instant provisional disposition order becomes extinct upon the lapse of the ten-day period. However, it is apparent that the instant provisional disposition order had already been issued at the time of July 21, 201, when the said ten-day period had already expired. As such, the instant provisional disposition order is based on the title of the invalid enforcement, and thus, it cannot be deemed that the instant provisional disposition order is effective as an enforcement title for the compensation as prescribed by the said decision.

Therefore, I point out that the plaintiff can raise an objection against the grant of execution clause against the decision of indirect compulsory enforcement of this case.

5. Therefore, without examining the grounds of appeal, the judgment of the court of first instance shall be reversed ex officio without examining the grounds of appeal, and the judgment of the court of first instance shall be revoked, and the case shall be transferred to the Panel Division of the Jinju Support, which is the competent court of first instance, to make a new trial and determination. It

Justices Kim Jae-hyung (Presiding Justice)