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1. Compulsory execution against the Defendant’s Plaintiff based on the payment order No. 2017 tea 913, Cheongju District Court Assistance 2017.4.
Reasons
1. The Defendant applied for a payment order against the Plaintiff for a balance of KRW 15,000,000 pertaining to B’s construction site as the Cheongju District Court Assistance 2017 tea 913, and the payment order was issued on June 22, 2017 (hereinafter “instant payment order”), and the fact that the payment order was finalized on July 12, 2017 is no dispute between the parties.
2. Summary of the parties' arguments;
A. The plaintiff paid 26,50,000 won exceeding 15,000,000 won of the payment order of this case to the defendant. Thus, compulsory execution based on the payment order of this case shall be dismissed.
B. The defendant has money to be paid at both the plaintiff C and B.
The payment order of this case is related to the field B, and the defendant did not receive 4,950,000 won from the plaintiff as to the above field.
3. Determination
A. In the case of a final and conclusive payment order, the grounds for failure or invalidation arising prior to the issuance of the payment order can be asserted in a lawsuit of demurrer against the payment order. In such a lawsuit of demurrer, the burden of proof as to the grounds for objection in a lawsuit of demurrer should also be in accordance with the principle of the burden of proof in general civil procedure. Therefore, in the event that the plaintiff claims that the claim was not constituted a claim in a lawsuit of demurrer against the payment order, the defendant is responsible for proving the facts of the claim, and in the event that the plaintiff claims facts that constitute a cause for failure or extinguishment of the right, such as the invalidity or extinguishment of the claim as a false declaration of conspiracy, the plaintiff is liable to prove such facts (see, e.g., Supreme Court Decision 2010Da12852, Jun. 24, 2010). Meanwhile, the debtor claims that he paid the amount of money as a specific debt, etc., and the creditor recognized the fact that he received it and appropriated it for repayment of the obligation.