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1. The instant lawsuit shall be dismissed.
2. The costs of lawsuit shall be borne by the Plaintiff.
Reasons
We examine the legitimacy of the instant lawsuit.
As the cause of the instant claim, the Plaintiff asserts that in the instant case of the collection amount of KRW 2015da110066, the Defendant brought against the Plaintiff, the judgment of the provisional execution ordering the Plaintiff to pay KRW 189,370,000 and damages for delay of KRW 160,000 among them was rendered on July 29, 2015 (hereinafter “the instant judgment”). Since there was a decision of non-guilty charges in relevant criminal cases as to the contents alleged by the Defendant as the cause of the instant claim, compulsory execution based on the Defendant’s judgment should be rejected.
However, Article 44(1) of the Civil Execution Act provides, “Where an obligor raises an objection to a claim finalized by a judgment, he/she shall file a lawsuit for objection to the claim with the court of first instance.” Thus, in cases where an executive title is a final and conclusive judgment with a declaration of provisional execution, he/she may file a lawsuit for objection to the claim after the judgment becomes final and conclusive, and it is not allowed to file a lawsuit for objection to the executive force by filing a lawsuit for objection to the claim
The plaintiff filed an appeal against the judgment of this case on August 12, 2015, according to the purport of the evidence Nos. 1 and 2 as well as the entire pleadings. The Seoul High Court Decision 2015Na2046834 decided June 16, 2016 (hereinafter "the judgment of this case No. 2") changed part of the purport that "the plaintiff shall pay damages for delay at the rate of 5% per annum from the day following the date of the final judgment of this case No. 2 until the day of complete payment, to the day of complete payment." The plaintiff filed an appeal against the judgment of this case on July 5, 2016, and the fact that the plaintiff continues to seek enforcement of this case by Supreme Court Decision No. 2016Da237585 decided June 16, 2016.