(영문) 의정부지방법원 2020.06.17 2019가단118203

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(영문) 의정부지방법원 2020.06.17 2019가단118203

채무부존재확인

Text

1. The instant lawsuit shall be dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

Reasons

Basic Facts

The defendant filed an application with the plaintiff for a payment order claiming the payment of the loan against the plaintiff as the Seocho-gun District Court of 2003Ra700, the court below rendered a payment order stating that "the plaintiff shall pay to the defendant 86,500,000 won per annum from November 30, 1996 to the service date of the original copy of the payment order, and 20% per annum from the next day to the day of complete payment (hereinafter "the payment order in this case"). The above payment order was finalized on October 11, 2003.

[Ground of recognition] Facts without dispute, Gap evidence No. 1, the purport of the entire pleading, and the lawsuit of confirming the legitimacy of the lawsuit of this case shall be permitted only in cases where it is the most effective and appropriate means to obtain a judgment of confirmation in order to eliminate the plaintiff's right or legal status in order to eliminate the apprehension and danger (see Supreme Court Decision 2000Da5640, Apr. 11, 2000). The plaintiff, around 2004, agreed to sell real estate and to exempt the defendant from the remainder of the debt with repayment of KRW 50,000,00,000 to pay for the defendant, and thus, the plaintiff filed the lawsuit of this case with the non-existence of the obligation based on the payment order of this case. However, the ultimate purpose of the lawsuit of this case is to exclude the defendant's compulsory execution of the plaintiff's property with the title of execution. Thus, the plaintiff's lawsuit of objection against the defendant is the most effective and appropriate means to eliminate the plaintiff's legal status and risks.

(The plaintiff seems to have brought an objection to the claim for the payment order of this case separately). Ultimately, the lawsuit for the confirmation of existence of the debt of this case is unlawful as there is no benefit of confirmation.

As the lawsuit of this case is unlawful, it is decided as per Disposition by the assent of all participating Justices.

참조판례

-대법원 2000. 4. 11. 선고 2000다5640 판결

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