Plaintiff

State New Enterprise Co., Ltd and one other (Attorney Clinical-gu, Counsel for the defendant-appellant)

December 19, 2014

Daejeon District Court Decision 2012Gahap6779 Decided October 22, 2013

1. All appeals by the Defendants are dismissed.

2. The costs of appeal are assessed against the Defendants.

1. Purport of claim

The Defendants shall comply with the procedures for the withdrawal and cancellation of provisional disposition with respect to each part of the real estate stated in the separate sheet among the cases of applying for provisional disposition for prohibition of disposal of real estate in the Daejeon District Court's District Court's 2005Kahap732.

2. Purport of appeal

The judgment of the first instance is revoked. All the plaintiff's claims are dismissed.

1. The quoted part

The reasons to be explained by this court are as follows: (a) Nonparty 1 of the 4th 16th 16th son of the court of first instance uses “Nonindicted 1” as “Nonindicted 1 of the court of first instance”; and (b) the Defendants’ assertion is identical to the reasoning of the court of first instance, except for adding the following judgments to the lower court; and (c) thus, they are cited in accordance with the

[Supplementary Judgment]

A. Part on the assertion that there is no benefit in the lawsuit

The Defendants asserted that, on February 24, 2006, the instant agreement and the agreement between Defendant 2 and Defendant 2 to delegate all the powers regarding the withdrawal of the application for provisional disposition and the cancellation of the execution with respect to the part of the instant apartment building ○○dong among the instant provisional disposition to the Plaintiff appears to be an execution contract, but this does not affect the enforcement agency by making it effective between the obligee and the third party. Thus, on the basis of the instant agreement, etc., the instant lawsuit seeking the implementation of the procedure for the withdrawal of the application for provisional disposition and the cancellation of the execution is without interest in the lawsuit

On the other hand, a claim for performance is a right that can claim another person's act or omission, and this claim is not only a civil right, but also a right under public law, as long as it falls under a civil jurisdiction, and there is no limitation on the content of a claim that serves as the basis of a performance lawsuit, and thus, a claim for payment of money, transfer of goods, statement of intent, etc. is sought by performance lawsuit.

In addition, Article 263(1) of the Civil Execution Act provides, “When a debtor has acknowledged and recognized the establishment of legal relationship, such protocol shall be deemed to have been recognized, and when a judgment ordering a statement of a doctor has become final and conclusive, such declaration of intent subject to enforcement pursuant to the provisions of the above Act shall be deemed to have been subject to a lawsuit for performance.” The above declaration of intent shall include a procedural declaration that can achieve the purpose by itself by means of a statement of intent, such as the procedure for filing a criminal complaint, withdrawal of a lawsuit, and the procedure for filing an application for permission for the sale of land requiring permission, such as the procedure for filing a criminal complaint (see Supreme Court Decision 9Da19278 delivered on December 26, 200).

In the case of this case, as alleged by the Defendants, the Plaintiff sought to the Defendants the withdrawal of the application for provisional disposition and the execution of the procedure for the cancellation of execution with respect to the part concerning the apartment house ○○dong among the provisional disposition of this case, based on the agreement of this case, etc. as alleged by the Defendants, and the execution of the procedure for the withdrawal of the application for provisional disposition and the execution of the procedure for the cancellation of execution constitutes an expression of intent that

B. Part on the assertion, such as the legality of rescission of a contract and refusal of performance due to changes in circumstances

After March 201, 201, the Defendants, following the instant agreement, used the instant building site in excess of the agreed usage as of April 28, 201 and the agreement dated May 11, 201, in order to acquire the instant new building (the Plaintiff’s wife agreed to sell the instant building site to Defendant 2, etc. at KRW 654,00,000) or in order to sell the building site to Defendant 2, etc. at KRW 654,00,000). The Defendants asserted to the effect that, in accordance with the instant agreement, etc., the Defendants could refuse to comply with the procedures for the withdrawal of the application for provisional disposition and the cancellation of execution with respect to the portion of the instant provisional disposition among the instant provisional disposition, since they constitute a change of circumstances in which the Defendants could not implement the procedures for the withdrawal of the application for provisional disposition and the cancellation of execution thereof.

First of all, when comprehensively considering the facts and circumstances acknowledged in the front portion of the Defendants’ claim that all of the instant loan claims were extinguished, it is not sufficient to recognize the same only by the entries in the evidence Nos. 9 through 16 (including the serial number), and there is no other evidence to acknowledge it. Ultimately, the Defendants’ above assertion is without merit without any need to further examine.

C. Part on the assertion that it goes against the good faith principle

The defendants asserted that if the plaintiff acquired the ownership of the new building of this case, it would be against the good faith to obtain the satisfaction of the claim of this case, even though the plaintiff did not obtain the satisfaction of each loan claim against the defendants.

However, it is difficult to recognize that the Plaintiff obtained a higher satisfaction of each of the loans owed to the Defendants as seen in the earlier-mentioned evidence relationship. Therefore, the above assertion by the Defendants is without merit without further review.

2. Conclusion

Therefore, the plaintiff's claim of this case is accepted on the grounds of its reasoning, and the judgment of the court of first instance is just in conclusion, and all appeals by the defendants are dismissed on the grounds of their merit. It is so decided as per Disposition.

[Attachment]

Records of Justices Jeong Jae-young (Presiding Judge)