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1. The Defendant’s Seoul Southern District Court 2018Gaso406017 royalty case against the Plaintiff on September 6, 2018.
Reasons
1. Basic facts
A. The Plaintiff purchased on September 10, 2015 the land building B in Bupyeong-gu Incheon (hereinafter “instant telecom”) and operated a mutual accommodation of C starting around that time.
B. The Defendant filed a lawsuit against the Plaintiff seeking payment of the usage fees of KRW 6,641,100, which were overdue from May 2, 2018 to August 2018, against the Plaintiff, as Seoul Southern District Court Decision 2018Da406017, and damages for delay thereof. The said court rendered a decision on performance recommendation (hereinafter “decision on performance recommendation of this case”) to the effect that the Defendant fully accepted the Defendant’s claim on September 6, 2018, and the instant decision on performance recommendation of this case became final and conclusive on September 29, 2018.
[Reasons for Recognition] Unsatisfy, entry of Gap 1 through 6, the purport of the whole pleadings
2. The assertion and judgment
A. The Plaintiff’s assertion that: (a) sold the instant franchise building to D on February 28, 2018; (b) transferred its ownership to D; and (c) as of April 30, 2018, the Plaintiff did not use electricity in the instant franchise from May 2018, such as settling all public charges and closing down the instant franchise business; and (d) therefore, compulsory execution based on the decision on performance recommendation should be denied.
B. 1) In the case of a final and conclusive payment order, the grounds for failure or invalidation, etc. arising prior to the issuance of the payment order may 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 ought to comply with the principle 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 objection against the final and conclusive payment order, the Defendant is liable to prove the grounds for the claim (see, e.g., Supreme Court Decision 2010Da12852, Jun. 24, 2010). This is seeking the exclusion of the enforcement force of the final and conclusive payment recommendation decision.