2016Da207973 Demurrer

A

Shin Hank Capital Co., Ltd.

Suwon District Court Decision 2015Na5667 Decided January 29, 2016

June 9, 2016

The judgment of the court below is reversed.

The judgment of the first instance court shall be revoked and the lawsuit of this case shall be dismissed. All costs of the lawsuit shall be borne individually.

Judgment ex officio is made.

Inasmuch as a third party’s lawsuit is a lawsuit seeking an objection against compulsory execution that is practically underway by infringing on the ownership or right of the subject matter of compulsory execution, and seek an exclusion of enforcement, it is unlawful as there is no benefit of the lawsuit in the case where compulsory execution, in which a lawsuit by a third party is filed or compulsory execution that existed at the time when a lawsuit by a third party is filed, is in progress (see, e.g., Supreme Court Decision 96Da37176, Nov. 22, 1996). If a request for auction is withdrawn, the effect of the seizure is extinguished and the auction procedure is terminated naturally (see, e.g., Article 93(1) of the Civil Execution Act), and the procedure of compulsory execution is terminated at the time of filing a lawsuit by a third party (see, e.g., Supreme Court Decision 96Da37176, Nov. 22, 1996). Accordingly, the costs of the judgment of the court of final appeal, without the assent of all participating Justices, cannot be seen from the judgment of this case.

Justices Cho Jong-hee

Justices Park Sang-hoon

Justices Kim Jae-tae

Justices Park Sang-ok