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1. The instant lawsuit shall be dismissed.
2. The costs of lawsuit shall be borne by the Plaintiff.
Reasons
1. Facts of recognition;
A. The Defendant applied for a payment order against the Plaintiff for the payment of KRW 16,090,529 (Seoul Central District Court 2019 tea3573). On March 28, 2019, the above court ordered the Defendant to pay the amount of KRW 16,090,529 and the amount of KRW 15% per annum from the day following the delivery of the payment order to the day of full payment. The above payment order was finalized on April 16, 2019.
(hereinafter “instant payment order”). B.
Based on the instant payment order, the Defendant received a seizure and collection order for the Plaintiff’s claim against D Co., Ltd. (C. Changwon District Court 2019TTT 3242), and collected KRW 16,251,390 from D Co., Ltd. on May 21, 2019, and submitted a report of collection to the court of execution.
[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, Eul evidence Nos. 1 to 6, the purport of the whole pleadings
2. As to the plaintiff's request for non-performance of compulsory execution based on the payment order of this case, the defendant asserted that there was no interest in the lawsuit of this case since the execution of the seizure and collection order based on the payment order of this case was terminated.
After compulsory execution based on executive title has been completed as a whole, there is no benefit to seek non-performance of compulsory execution by a lawsuit of demurrer against a claim (Supreme Court Decision 2013Da82043 Decided May 29, 2014). Compulsory execution against a claim is terminated when the collection creditor files a report of collection with the execution court in the case of a collection order (see Supreme Court Decision 2003Da30135 Decided September 29, 2005). In light of the above legal principles, this case is examined, and the fact that the defendant received the seizure and collection order based on the instant payment order and completed the collection report from D Co., Ltd., a third debtor, and completed the collection report after completing the collection. Accordingly, execution under the instant payment order has already been completed.