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(영문) 수원지방법원안양지원 2020.05.29 2019가단118652
채무부존재확인
Text

1. The defendant's notary public against the plaintiffs is based on notarial deeds No. 914 of the 2012 Certificate of D Notaries Office.

Reasons

1. Basic facts

A. On July 23, 2012, the Plaintiffs received 100 million won from the E RepresentativeF with interest rate 3% per month and the date of repayment as of August 22, 2012, respectively.

B. On July 23, 2012, the Defendant received the Plaintiffs’ documents, etc. from F for the preparation of authentic deeds from F, as the agent of creditor, debtor and joint and several sureties, the Defendant is the creditor, and the Plaintiff A is the debtor, the Plaintiff B is the joint and several sureties, and the loan amounting to KRW 120,000,000, the due date for payment was due on August 22, 2012, and the interest amount was 36% per annum (hereinafter “instant authentic deeds”).

[Ground of recognition] Unsatisfy, Gap evidence 1 (including each number), the purport of the whole pleadings

2. The assertion and judgment

A. The Plaintiffs asserted that: (a) on July 23, 2012, the Plaintiff borrowed KRW 100 million from F on condition of 3% interest per month; and (b) was unaware of the fact that the instant notarial deed was written by the Defendant’s obligee; and (c) the said money was fully repaid to F; and (d) accordingly, compulsory execution based on the instant notarial deed should be denied.

The defendant, through F, lent the above money to the plaintiffs, and only 3% interest per month has been paid through F, and the principal is not paid.

B. In a lawsuit of demurrer, the burden of proving the grounds for objection is also in accordance with the principle of allocation of the burden of proof in general civil procedure. In the case of executive titles with no res judicata as in a notarial deed, the failure or invalidation of a claim can also be the grounds for objection (see Articles 59(3) and 44(2) of the Civil Execution Act). In the case where the plaintiff asserts that the claim was not constituted a claim in a lawsuit of objection against a notarial deed, the plaintiff is liable to prove the facts of the cause of the claim, and the plaintiff is either null and void by false declaration or by repayment.

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