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1. The Defendant’s order for payment against the Plaintiff was based on the payment order issued on December 27, 2016, 2016.
Reasons
1. Basic facts
A. The defendant operates a gas station in Gyeonggi-gun C, and the non-party D runs the construction business under the trade name of "E".
B. The Defendant asserted that the Plaintiff and D did not pay KRW 6,239,978 of the oil price supplied from November 1, 2016 to the 23th day of the same month while operating the “E” as the partnership business, and filed an application for a payment order with the Plaintiff and D to seek jointly and severally pay the said KRW 6,239,978 and the delay damages therefor, and received the payment order under Paragraph (1) of the Disposition (hereinafter “instant payment order”), and thereafter, the said payment order against the Plaintiff was finalized.
[Ground of recognition] Facts without dispute, entry of Gap evidence 1 to 6, purport of the whole pleadings
2. The assertion and judgment
A. The plaintiff's assertion is that the plaintiff only worked as the warden of the construction site contracted to D, and did not operate "E" as the same business with D, so compulsory execution based on the payment order of this case should be dismissed.
B. In the case of a final and conclusive payment order 1), the grounds for failure, invalidation, etc. arising prior to the issuance of the payment order may be asserted in a lawsuit of demurrer against the payment order (see Articles 58(3) and 44(2) of the Civil Execution Act). The burden of proof as to the grounds for objection in a lawsuit of demurrer shall also be in accordance with the principle of the distribution of burden of proof in general civil procedure. Therefore, in a case where the plaintiff asserts that the claim for the payment order was not established in a lawsuit of demurrer, the defendant shall be liable to prove the facts of the cause of the claim, and where the plaintiff asserts that the claim constitutes a cause for failure or extinguishment of the right, such as the invalidity or extinguishment of the claim as a false declaration of conspiracy, or the extinguishment of the claim by repayment, the plaintiff shall be liable to prove the fact (see Supreme Court Decision 2010Da12852, Jun. 24, 2010).