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(영문) 창원지방법원 2017.08.18 2016가단21455
청구이의
Text

1. Compulsory execution based on the Supreme Court Decision 2013Gais11352 Decided June 11, 2014 against the Plaintiff by the Defendants against the Plaintiff is each 689.

Reasons

1. Facts of recognition;

A. D filed a claim against the Plaintiff for wage under this Court No. 2013 Ghana11352, and on June 11, 2014, D was sentenced to a judgment that “the Plaintiff shall pay D 2,394,040 won and 20% interest per annum from January 8, 2012 to the day of full payment.”

The Plaintiff appealed by this Court No. 2014Na32209, but was sentenced to a dismissal judgment on December 18, 2014. The Plaintiff appealed by Supreme Court Decision 2015Da20318, but was sentenced to dismissal judgment on May 28, 2015, but the first instance judgment (hereinafter “instant judgment”) became final and conclusive around that time.

B. As the Plaintiff did not perform its obligation under the instant judgment, D applied for a compulsory auction on the real estate owned by the Plaintiff to E in this court, and disbursed KRW 1,359,200 as auction expenses.

C. D filed an application against the Plaintiff for the determination of the amount of litigation costs according to the instant judgment with the competent court No. 2015Kao-565, and this court rendered a decision on January 21, 2016 that “The Plaintiff determined that the amount of litigation costs to be repaid to D is KRW 422,671.”

D died on February 2016, and the Defendants jointly inherited shares of 1/2.

E. The Plaintiff paid the Defendants KRW 5,00,000,000 on December 13, 2016, and KRW 166,396 on December 19, 2016.

[Reasons for Recognition] Facts without dispute, Gap 1, 2 evidence, Eul 1 through 4 (including partial numbers), the purport of the whole pleadings

2. Assertion and determination

A. Since the Plaintiff’s assertion and reimbursement of all obligations, litigation costs, enforcement costs, etc. according to the instant judgment, compulsory execution based on the instant judgment shall be denied.

B. Article 479 of the Civil Act on the order of appropriation of performance to the principal applies not only to reimbursement, but also to other grounds for extinguishment of obligation such as deposit and set-off, etc. The cost first appropriated is determined as the cost of lawsuit or execution required to enforce the claim, or is determined as the cost of lawsuit or execution cost.

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