청구이의
1. The instant lawsuit shall be dismissed.
2. The costs of lawsuit shall be borne by the Plaintiff.
1. The following facts may be found in the absence of a dispute between the parties, or may be found in the entries in Gap evidence (including branch numbers; hereinafter the same shall apply) under subparagraph 2, by integrating the whole purport of pleadings:
① On December 27, 2018, the Defendant filed an application against the Plaintiff for a payment order claiming the payment of damages amounting to KRW 715,323,970, and delayed damages amounting to KRW 715,323,976 at this court.
② On December 31, 2018, this Court issued a payment order (hereinafter “instant payment order”) stating that “The Plaintiff shall pay to the Defendant delayed damages calculated at the rate of 15% per annum from the day following the month of the original delivery of the payment order to the day of full payment” (hereinafter “instant payment order”).
③ On February 21, 2019, the instant payment order was served by the Defendant at the place of service of the Plaintiff, and Nonparty E received the instant payment order as Nonparty E’s live-in capacity, as the Plaintiff’s live-in partner.
2. Determination as to the legitimacy of the instant lawsuit
A. A lawsuit of demurrer against a claim of relevant legal doctrine refers to a lawsuit seeking the exclusion of executory power by asserting the substantive grounds with respect to a claim indicated in the executory power, such as a final and conclusive judgment rendered by the debtor, etc. (Article 44 of the Civil Execution Act). Therefore, the subject of effective executor
No objection is raised, or a payment order has the same effect as a final and conclusive judgment at the time the objection is withdrawn or a decision of rejection becomes final and conclusive (Article 474 of the Civil Procedure Act). Since an order of payment which is not final and conclusive cannot be a valid title of enforcement, a lawsuit of demurrer is not filed against a claim seeking the exclusion of enforcement power (see Supreme Court Decision 2012Da70012, Nov. 15, 2012). In principle, service shall be made at the “place of service, such as the address, residence, place of business or office, etc., of the person to be served” as provided by Article 183(1) of the Civil Procedure Act, and shall be served as a supplementary service under Article 186(1) of the Civil Procedure Act.