1. The Seoul Central District Court 2010Gaso9835 rendered a decision on the Defendant’s recommendation of performance against the Plaintiff.

1. Basic facts

A. C has obtained a loan from D Co., Ltd., and the Plaintiff jointly and severally guaranteed the above loan obligation (hereinafter “instant obligation”) or the instant claim, and the Defendant was transferred the instant claim from D Co., Ltd.

B. On July 19, 2010, the Defendant filed a lawsuit against the Plaintiff for the payment of the debt incurred due to the said joint and several sureties (Seoul Central District Court 2010da909835). On August 20, 2010, this court made a decision on performance recommendation (hereinafter “decision on performance recommendation of this case”) and the decision on performance recommendation of this case became final and conclusive on December 28, 2010.

【Reasons for Recognition】 Entry of Evidence No. 1, and the purport of the whole pleadings

2. The assertion and judgment

A. The Plaintiff asserted that the instant claim is a commercial claim and is subject to the five-year extinctive prescription. As the Defendant filed a lawsuit after the lapse of five years from the 2000, which is the time when the instant claim occurred, the instant claim is extinguished by prescription, and thus, the instant claim does not have any obligation based on the instant decision of performance recommendation, and therefore, compulsory execution based on the instant decision of performance recommendation should be denied.

As to this, the defendant asserts that the plaintiff is liable to pay the guaranteed debt and damages for delay to the defendant.

B. 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 limitation of res judicata (Article 5-8(3) of the Trial of Small Claims Act). Therefore, in a lawsuit of demurrer, the determination of performance recommendation may be deliberated and judged as to all the claims as indicated in the decision on performance recommendation. In such a case, the burden of proof for the existence or establishment of the claim is against the defendant in the lawsuit of objection.

(see, e.g., Supreme Court Decision 2010Da12852, Jun. 24, 2010). We examine the existence and scope of the instant claim.