청구이의
1. The Defendant’s compulsory execution against the Plaintiff at the Daegu District Court Branch Branch No. 2017 tea 1100 was made based on the payment order.
1. Basic facts
A. On April 29, 2016, the Defendant asserted that “the Plaintiff purchased ready-mixed 22 metres equivalent to KRW 1,481,040 from the Defendant on April 29, 2016,” and applied for a payment order against the Plaintiff in the Daegu District Court Port Support (2017 tea 11000) and its delay damages.
B. On July 13, 2017, the above court issued a payment order stating that “the Plaintiff shall pay to the Defendant the amount of KRW 1,481,040 and the amount calculated at the rate of 15% per annum from the day following the delivery date of the payment order to the day of full payment” (hereinafter “instant payment order”). The above payment order became final and conclusive around that time.
[Ground of recognition] Facts without dispute, entry of Gap evidence 1, purport of whole pleadings
2. Determination as to the cause of action
A. In the case of a final and conclusive payment order, the grounds for failure, invalidation, etc. arising prior to the issuance of the payment order may be asserted in the lawsuit of demurrer against the payment order (see Articles 58(3) and 44(2) of the Civil Execution Act). In the lawsuit of objection, the burden of proof as to the grounds for objection to the claim should be in accordance with the principle of allocation of burden of proof in general civil procedure.
Therefore, in a lawsuit of demurrer against a claim for a final and conclusive payment order, where the plaintiff claims that the defendant's claim had not been constituted, the defendant is liable to prove the cause of the claim, and where the plaintiff claims facts that fall under the disability or cause of extinction of the right, such as the invalidity or extinguishment of the claim as a false declaration of prior agreement
(see, e.g., Supreme Court Decision 2010Da12852, Jun. 24, 2010). B.
Judgment
Based on the above legal principles, the Plaintiff asserted that the Plaintiff did not enter into a contract for the supply of ready-mixed with the Defendant. Therefore, the Defendant’s claim for the payment of ready-mixed against the Defendant.