(영문) 서울중앙지방법원 2016.07.21 2015가단135673

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(영문) 서울중앙지방법원 2016.07.21 2015가단135673

약정금 등

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1. Defendant B’s objection against the payment order by Seoul Central District Court 2015 tea 29522 is dismissed;

2. Defendant.

Reasons

1. According to the litigation records between the plaintiff and the defendant B, the payment order of this case was served on June 30, 2015 by the court of this case on the defendant B. The defendant B raised an objection against the above payment order on July 24, 2015 after the lapse of the period of raising an objection within two weeks under Article 470(1) of the Civil Procedure Act. Nevertheless, the court in charge of demand procedure is recognized to have not dismissed the above objection of the defendant B and sent the records of trial to this court.

In light of the fact that the court in charge of demand procedure fails to dismiss an unlawful objection against the payment order pursuant to Article 471 (1) of the Civil Procedure Act and send the records of trial to the principal case court, and that the payment order is invalidated by a formal objection, there is a view that the court in charge of demand procedure cannot judge the legitimacy of the objection against the payment order in the principal case proceeding.

(See Supreme Court Decision 2012Ga54268 Decided December 27, 2012 (see Supreme Court Decision 2012Da54268, Dec. 27, 2012). However, under the legal system where a separate remedy scheme is in place for a lawsuit claiming an objection against a payment order finalized for a debtor, the interpretation of recognizing the continuation of the legal proceedings against an illegal objection filed by the debtor is not reasonable, and Article 470(1) of the Civil Procedure Act provides that "if an objection is filed within two weeks from the date on which the debtor is served with the payment order, the payment order shall lose its effect within the scope." Thus, the payment order shall not be interpreted to be invalidated by an objection raised after the lapse of the filing period, and the rejection of the objection against the payment order shall be deemed to have become final and conclusive after a certain objection period expires. However, the act of the demanding court

참조조문

-민사소송법 제470조 제1항

-민사소송법 제471조 제1항

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