(영문) 인천지방법원부천지원 2015.09.01 2015가단106303

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(영문) 인천지방법원부천지원 2015.09.01 2015가단106303

청구이의

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1. The Defendant’s claim for loans against the Plaintiff is final and conclusive.

Reasons

1. Basic facts

A. On January 5, 2011, the Plaintiff received KRW 10,000,00 from the Defendant.

(hereinafter “the instant money”). (b)

Since then, the Plaintiff paid KRW 170,000 per month to the Defendant from February 201 to September 2014, and KRW 200,00 per month from October 2014 to March 2015.

C. The Defendant asserted that the Plaintiff lent the instant money to the Plaintiff, and on August 4, 2014, against the Plaintiff, the Defendant applied for payment order from the Incheon District Court Branch Branch Order 2014 tea 7061. The said payment order was finalized on September 2, 2014.

(1) The Defendant issued a seizure and collection order against the Plaintiff on April 17, 2015, with the title of execution of the said final payment order, with the claim attachment and collection order issued by this Court No. 2015TT 3612; hereinafter the “instant payment order”). The instant final payment order was deemed as the ground for recognition, without any dispute, and the purport of the entire pleadings and arguments by the Defendant.

2. The plaintiff asserted that the plaintiff has been in charge of raising investment funds from the surrounding areas to make investment and transfer them to C, while the defendant asserts that the amount of this case is also received from the defendant as investment funds, and it is not borrowed from the defendant, while the defendant is asserting that it was paid to the plaintiff with the loan.

3. Determination

A. In the case of a final and conclusive payment order, the grounds for failure, invalidation, etc. arising prior to the issuance of the payment order may be asserted in a lawsuit of objection 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 objection shall be in accordance with the principle of allocation of the burden of proof in general civil procedure. Thus, in the 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 shall be liable to prove the grounds for the claim.

참조조문

-민사집행법 제44조 제2항

-민사집행법 제58조 제3항

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