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1. The plaintiff's claim that the court changed in exchange is dismissed.
2. All costs of the lawsuit shall be borne by the Plaintiff.
Reasons
1. Basic facts
A. The Defendant filed a lawsuit against C Co., Ltd. (hereinafter “C”) for a claim for the delivery of a building, etc. under this Court Decision 2017Da5038269, which stated that “C shall pay to the Defendant the amount of KRW 293,680,290, and damages for delay of KRW 270,000,000 among them” (hereinafter “instant judgment”).
B. On January 9, 2018, the Defendant executed the seizure of corporeal movables on the attached list (hereinafter “instant movables”) by the Seoul Central District Court E (hereinafter “instant auction”) based on the instant judgment from the Seoul Central District Court D, 1st and 2nd floor in Jung-gu, Seoul.
C. The Defendant received dividends of KRW 25,441,690 in the instant auction procedure on January 30, 2019.
【Ground of recognition】 The fact that there has been no dispute, Eul 1, 4, and the purport of the whole pleading
2. Whether the request has been exchanged or changed.
A. The plaintiff asserted that the defendant raised an objection against a third party regarding the auction procedure of this case, but changed the purport of the claim to a return of unjust enrichment. This is an objection to the plaintiff's modification of the purport of the claim, since there is no identity in the basis of the claim.
B. Article 262(1) of the Civil Procedure Act provides that “The plaintiff may alter the purport or cause of the claim until a judgment is rendered, in the case of a judgment that was rendered without pleading, within the extent that the basis of the claim is not altered.”
Provided, That the same shall not apply where it substantially delays the proceedings.
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The Plaintiff’s request for change of exchange is legitimate for the following reasons by satisfying all the requirements of Article 262(1) of the Civil Procedure Act.
Therefore, despite the defendant's disapproval, only the claim for return of unjust enrichment that is exchangedly changed in this court is subject to the judgment of this court.
① Under the premise that the instant movable is owned by the Plaintiff, the Plaintiff’s judgment on the instant movable is based on the title of execution.