청구이의
1. The defendant's appeal is dismissed.
2. Paragraph 1 of the decision of the court of first instance shall be written until this decision becomes final and conclusive.
1. The following facts are acknowledged as either of the parties to a dispute or as a whole by taking account of the overall purport of the arguments in Gap evidence Nos. 4 and 5:
A. A. Around October 26, 2017, B (the Defendant prior to the filing of a lawsuit) filed a lawsuit against the Plaintiff with the Suwon District Court 2017Gaso25633, U.S. A. In that case, B filed a lawsuit against the Plaintiff, the bankrupt debtor B, according to a contract between the Plaintiff and the Plaintiff, completed construction works, such as cutting and stopping of land D and E (hereinafter “each of the instant lands”), and sought payment for the construction cost of KRW 20 million and delay damages therefor.
B. On November 20, 2017, the said court rendered a decision on performance recommendation (hereinafter “the instant decision on performance recommendation”) with the content that “the Plaintiff shall pay KRW 20 million to the bankrupt debtor B and its delayed damages.” The said decision on performance recommendation became final and conclusive on December 6, 2017.
C. On January 9, 2018, the Plaintiff filed a lawsuit of objection against the instant claim seeking the denial of compulsory execution based on the decision on performance recommendation. On May 8, 2019, the bankruptcy debtor B was declared bankrupt on May 8, 2019, and on the same day, the Defendant was appointed as the bankruptcy trustee and taken over the instant lawsuit.
2. Determination
A. Although the decision on performance recommendation has become final and conclusive and the res judicata does not take place, the restriction is not applied to a lawsuit of demurrer pursuant to the time limit of res judicata (Article 5-8(3) of the Trial of Small Claims Act). In a lawsuit of demurrer, the deliberation and determination of all the claims indicated in the decision on performance recommendation may be made on the grounds of appeal. In this case, the burden of proof as to the existence or establishment of the claim shall be borne by the creditor, i.e., the defendant in the lawsuit of objection.
B. The defendant submitted evidence Nos. 1 to 10 as evidence that the bankrupt debtor B completed the construction work, such as cutting and stopping work, according to the contract between the plaintiff and the plaintiff, and Nos. 1 and 1.