In cases where a transferee obtains an execution clause by transfer of a claim on the title of execution, whether a lawsuit of demurrer against a transferor is legitimate (negative), and whether the same applies to compulsory execution by the authentic copy of a decision on performance recommendation under the Trial of Small Claims Act (affirmative)

In cases where a claim on the title of execution satisfies the requirements for setting up against the assignee, the standing of the executor is changed to the assignee, and the assignee becomes final and conclusive as the assignee according to the purport that the execution clause is to be succeeded to, the executory power of the existing executive title against the transferor shall be extinguished due to the grant of the succeeding execution clause. Therefore, the lawsuit of objection raised against the transferor is unlawful as there is no benefit in the protection of rights by filing a lawsuit against a person who is not qualified for the defendant, or by seeking exclusion of enforcement force of the title which has already been extinguished. This legal principle is likewise applicable in cases where compulsory execution is possible by the original copy of the written decision on performance recommendation without the need to separately obtain the execution clause pursuant to Article 5-8(1) of the Civil Execution Act, such as the final decision on performance recommendation under the Trial of Small Claims Act, without being required to separately obtain the execution clause pursuant to Article 5-8(1) of the same Act (where the creditor who transferred the right

Article 44 of the Civil Execution Act; Article 5-8 of the Trial of Small Claims Act; Article 31 of the Civil Execution Act

Plaintiff

Defendant

Busan District Court Decision 2004Na9142 delivered on April 8, 2005

The judgment of the court of first instance is reversed, and the judgment of the court of first instance is revoked. The litigation costs are assessed against the plaintiff.

The grounds of appeal are examined.

1. Where a claim on the title of execution meets the requirements for setting up against the assignee as the claim on the title of execution is transferred, the standing for the executor is changed to the transferee, and the transferee becomes the transferee according to the succession execution clause becomes final and conclusive as the assignee, so the existing executive titles in relation to the transferor shall be extinguished due to the grant

Therefore, a subsequent suit of objection filed against a transferor is unlawful as there is no benefit in the protection of rights by filing a lawsuit against a non-qualified person or seeking the exclusion of executive force already extinguished. This legal doctrine is the same in cases where compulsory execution is possible based on the original copy of a written decision of performance recommendation without need to be separately granted under Article 5-8(1) of the said Act, such as the final decision of performance recommendation under the Trial of Small Claims Act (i.e., a creditor who transferred a claim on the source of execution right may lodge a dispute as to the method of execution under Article 16 of the Civil Execution Act in cases where the creditor who transferred a claim on the source of execution right takes the procedure of compulsory execution based on the original copy of a written decision of performance

2. According to the reasoning of the judgment below, the court below determined that the defendant's joint defendant 2 was not entitled to succeed to the execution clause of the above execution recommendation decision, and that the defendant transferred his claim against the plaintiff to the joint defendant 2 after the execution recommendation decision became final and conclusive to the effect that "the plaintiff shall pay money at the rate of 25% per annum from January 7, 1999 (which appears to be a clerical error) to the defendant during the full payment period from January 7, 1999," and that the joint defendant 2 of the court below was transferred the claim under the above execution recommendation decision which became final and conclusive from the defendant and filed a lawsuit against the plaintiff against the plaintiff, but the plaintiff was set off against the plaintiff with the obligation under the above execution recommendation decision as an automatic claim, and that the joint defendant 2 of the court below was entitled to succeed to the execution clause of the above execution recommendation decision as to the claim against the plaintiff under the above execution recommendation decision, and that the defendant was not entitled to the plaintiff's joint defendant 2's execution creditor.

3. However, examining the above facts in light of the legal principles as seen earlier, since the enforcement force of the Defendant’s decision on performance recommendation against the Plaintiff was extinguished according to the granting of the succeeding execution clause by Co-Defendant 2 of the lower court, a suit of objection filed against the Defendant is filed against a non-qualified person, or seeking to exclude the executory power of the title of debt which has already been extinguished, and thus, is unlawful.

If so, the court below should have dismissed the lawsuit of this case, but it did not regard the lawsuit of this case as legitimate, and thus, the court below erred in the misapprehension of legal principles as to the defendant's standing to file a lawsuit and the benefit of protecting rights.

4. Therefore, the judgment of the court below shall be reversed. Since this case is sufficient for the court to directly render a judgment, the judgment of the court of first instance shall be revoked pursuant to Article 437 of the Civil Procedure Act, and the lawsuit of this case shall be dismissed, and the total cost of the lawsuit of this case shall be borne by the plaintiff, who is the losing party

Justices Park Si-hwan (Presiding Justice)