청구이의의소
1. The Defendant’s order based on the payment order issued on July 30, 2014 by the Incheon District Court Branch Branch of the Incheon District Court for the Plaintiff.
1. On March 29, 2014, the Plaintiff prepared a loan certificate stating that “The Plaintiff shall repay the rent of KRW 10 million to the Defendant up to June 25, 2014.”
On July 30, 2014, the Defendant applied for a payment order seeking the payment of the above loan and interest amount based on the above loan certificate and received a payment order stating that “the Plaintiff shall pay to the Defendant the amount of KRW 10,000,000 and the amount calculated at the rate of KRW 2.4% per month from March 29, 2014 to the date of full payment” (hereinafter “instant payment order”). The payment order was served to the Plaintiff on August 8, 2014, and became final and conclusive on August 23, 2014.
On August 5, 2015, the Defendant applied for an auction on the real estate owned by the Plaintiff (H apartment No. 31, 1303, Hacheon-gu, Nam-gu, E, F, and H apartment), with the original copy of the instant payment order as the executive title, and received a ruling to commence the auction on August 5, 2015 (Seoul District Court I).
[Ground of recognition] Facts without dispute, Gap 1-3, 5 evidence, Eul 1, the purport of the whole pleadings
2. The parties' assertion
A. The plaintiff asserted that the plaintiff prepared the loan certificate of this case to the defendant at the request of J and K, and the debtor did not have any interest agreement in addition to the principal of the loan at the time.
After the drawing up of the instant loan certificate, K pays 5.4 million won to the Defendant from August 21, 2014 to June 4, 2015, and from April 2014 to July 2014 by J, to the Defendant, the principal of the debt on the instant loan certificate remains more than 2.6 million won (=10 million won to KRW 5.4 million).
Nevertheless, the Defendant seeks to enforce enforcement on the Defendant’s property, based on the following: (a) the Defendant voluntarily stated the matters concerning interest on the loan certificate; and (b) accordingly, seeks to exclude compulsory enforcement under the instant payment order.
B. The money that Defendant J and K paid to the Defendant is appropriated for the repayment of the Defendant’s debt to the Defendant, and the Plaintiff’s debt is not for the repayment of the Plaintiff’s debt, and thus, the Defendant’s debt under the loan certificate in this case.