청구이의
1. The defendant's appeal is dismissed.
2. The costs of appeal shall be borne by the Defendant.
Purport of claim and appeal
1...
1. The following facts are recognized in light of the absence of dispute between the parties to the facts of recognition, or the overall purport of Gap's statements and arguments.
① On January 11, 2007, the Plaintiff prepared and delivered the instant notarial deed to the Defendant.
A promissory note on the above notarial deed is written on November 10, 2005, the issue date of the Plaintiff, the payee, the Defendant, the face value 27 million won, and the issue date, and January 15, 2007.
② On January 15, 2007, the Plaintiff repaid the Defendant KRW 27 million (hereinafter “instant reimbursement”).
③ On March 27, 2017, the Defendant was granted the execution clause on the ground of the instant notarial deed, and applied for a seizure and collection order on the Plaintiff’s benefit on August 30, 2017. On August 31, 2017, the Defendant was issued a seizure and collection order on the claim amounting to KRW 27 million with the Chuncheon District Court 2017TTT2667 on August 31, 2017.
2. According to the facts acknowledged prior to the judgment, a debt under the notarial deed of this case has already been extinguished by the repayment of this case, so compulsory execution based on the notarial deed of this case is not allowed.
On the other hand, the defendant asserts that, around January 16, 2007, the plaintiff borrowed KRW 25 million from the defendant again from the defendant around January 16, 2007 after the date of the repayment of this case, and the notarial deed of this case was offered as security for KRW 25 million, and therefore, the obligation based on the notarial deed of this case still exists.
On the other hand, even if the parties agree to use the previous execution certificate as a new claim by preparing an execution certificate regarding a certain legal relationship and extinguishing the legal relationship and establishing a claim based on a new legal relationship, such execution certificate cannot be deemed to be a new claim (see, e.g., Supreme Court Decision 2004Da35410, Nov. 25, 2004). Thus, compulsory execution based on the execution certificate is not allowed (see, e.g., Supreme Court Decision 2004Da35410, Nov. 25, 2004).