2013Du13166 Objection

1. Commercial Building Cooperatives 000;

Incheon

Representative of the partnership 00

2. Article 00 (48 - 1)

Incheon

[Judgment of the court below]

Attorney Long-term Salary

1.00 (39 - 1)

Incheon

2.00 (62 - 1)

Seoul

3.00

Sungnam-si

4. (60 - 1)

Incheon

5.00

Incheon

[Defendant-Appellant] Han Jae-ro

[Judgment of the court below]

May 29, 2014

June 12, 2014

1. The plaintiffs' claims against the defendants are all dismissed.

2. The costs of lawsuit are assessed against the plaintiffs.

In the case of indirect compulsory performance against the Defendants, Incheon District Court 2013 Taz. 3182, the compulsory execution based on the decision of indirect compulsory performance is denied.

1. Basic facts

A. On April 25, 2013, the Incheon District Court 2013Kahap647, which the Defendants filed against the Plaintiffs, concluded a mediation to the effect that “The Plaintiffs and their agents allow the Defendants or their agents to peruse and copy (including photographing and copying of computer diskettes) documents and materials in the separate sheet from May 10, 2013 to Plaintiff 00 commercial cooperatives (hereinafter “Plaintiff Cooperatives”)’s office.”

B. Around May 10, 2013, the Defendants requested the Plaintiffs to allow perusal and copying of the above documents and materials. However, the Plaintiffs visited only one representative designated by the Defendants to visit on May 10, 2013, and rejected perusal and copying of documents due to the following limitations: (a) the Plaintiffs are allowed to peruse only one hour from 00:0 to 11:00 on May 10, 2013; (b) subsequent perusal is possible only when the Plaintiff’s regular general meeting agenda items are reflected; and (c) each letter on information protection is required to be written.

C. On June 26, 2013, the Defendants received from the above court a decision of the following content, etc. (hereinafter “the instant indirect compulsory enforcement decision”) by indirectly forcing the Plaintiffs by the Incheon District Court 2013Ma3182.

(1) The Plaintiffs should allow the Defendants or their agents to peruse and copy (including photographing and copying computer diskettes) the documents and data stated in the attached list only for 10:00 to 16:00 only in the Plaintiff’s partnership office for 10 days, excluding holidays and Saturdays, from three days after receipt of this decision.

(2) If the plaintiffs violate the above order, the plaintiffs shall jointly and severally pay to the defendants the amount of KRW 2,00,000 per day of violation (each of KRW 400,000 per each of the defendants).

D. On June 27, 2013, the original copy of the instant decision of indirect compulsory performance was served on each of the Plaintiffs, and the instant decision of indirect compulsory performance became final and conclusive thereafter.

[Grounds for Recognition] The non-contentious facts, Gap evidence Nos. 3 and 4 (including branch numbers), the purport of the whole pleadings

2. As to the cause of the claim

A. Summary of the plaintiffs' assertion

The Plaintiffs, from July 1, 2013 to July 12, 2013, which was three days after service of the original copy of the instant indirect compulsory performance decision, allowed the Defendants to peruse and copy the documents and materials listed in the separate sheet to the Defendants from July 12, 2013, when ten days have elapsed excluding holidays and Saturdays, thereby satisfying all the significances according to the instant indirect compulsory performance decision. Therefore, compulsory execution against the Defendants should be denied.

B. Determination

In order for a creditor to enforce a decision of indirect compulsory performance with an executive title to enforce a decision of indirect compulsory performance on a non-performance obligation, a creditor’s violation of an obligation of indirect compulsory performance constitutes a condition to enforce a decision of indirect compulsory performance, and thus, a creditor may obtain an execution clause only if he/she proves the fulfillment of the condition under Article 30(2) of the Civil Execution Act. Whether the fulfillment of the condition, which is the requirement for granting the execution clause, is a matter to be asserted and examined in a lawsuit of demurrer against the grant of the execution clause related to the grant of the execution clause or a lawsuit of objection against the grant of the execution clause, and is not a matter to be deliberated in a lawsuit of objection to seek the exclusion of the enforcement power of the claim indicating the execution title, on the ground of an objection raised against the claim arising from the enforcement title (see, e.g., Supreme Court Decision 201Da92916, Apr. 13, 2012).

With respect to the instant case, the circumstance that the Plaintiffs performed their duty of action by the decision of indirect compulsory performance of the instant case cannot be the same ground for objection in light of the aforementioned legal principles. Therefore, the Plaintiffs’ assertion is without merit without further review.

[ further, even if examining, the Plaintiffs, from July 1, 2013 to July 12, 2013, allowed the Defendants to peruse and copy the details of the association account in the situation of the Plaintiff’s member, who is the other party to the deposit and withdrawal of the union account from July 1, 2013 to July 12, 2013, and it is difficult to deem that there is a justifiable reason. Accordingly, the Plaintiffs violated the duty to act in the instant indirect compulsory performance order, and thus, pointed out that the Plaintiffs violated the duty to act in the instant indirect compulsory performance order (i.e., even though the Plaintiffs again provided the Defendants with the said real name as above, it does not affect the effect of the breach of duty).

3. Conclusion

Therefore, all of the plaintiffs' claims against the defendants are dismissed. It is so decided as per Disposition.

Justices Kim Jong-hoon

Judge Myeong-hun

Judge domination

List

1. Minutes (Board of Directors and General Meeting);

(a) A list of participants in the meeting;

(b) Minutes;

* From the time of the inaugural general meeting to the date:

2. Books of accounts;

(a) A book on the entry and withdrawal;

(b) Documents evidencing various disbursement;

* From the inaugural general meeting to the date

3. Details of accounts for cooperative expenses and land bills (issuance of financial institutions);

* From the inaugural general meeting to the date

4. Current status of the payment of land prices by each member;

5. A payment receipt of land price (issuance of the Korea Land and Housing Corporation).