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1. The Defendant’s payment order against the Plaintiff was based on the Seoul Central District Court Decision 2019Hu436414.
Reasons
1. On October 11, 2019, the Defendant was issued a payment order (Seoul Central District Court 2019 tea436414; hereinafter “instant payment order”) ordering the Plaintiff to pay the loan of KRW 3,000,000 and damages for delay calculated at the rate of KRW 38.4% per annum from March 8, 2012 to the date of full payment (hereinafter “instant payment order”).
The above payment order was finalized on November 1, 2019.
The cause of the claim for the instant payment order is that the Defendant determined and lent KRW 3,000,000,000 to the Plaintiff at 38.4% per annum.
[Ground of recognition] A without dispute, entry of evidence No. 1, purport of the whole pleadings
2. 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 demurrer against the payment order with respect to the claim which became the cause of the claim of the payment order, and the burden of proof as to the grounds of objection in the lawsuit of objection shall also be in accordance with the principle of burden of proof distribution in the general civil procedure.
In the instant case, the Plaintiff asserted that the loan (as of March 8, 2012) claim on the instant payment order was not established, and thus, there is no evidence to prove that the Defendant lent KRW 3,000,000 to the Plaintiff, “as of June 24, 2010” (see, e.g., Supreme Court Decision 2010Da12852, Jun. 24, 2010).
The defendant asserts that the defendant lent KRW 3,000,000 to the plaintiff " April 17, 2007" as interest rate of KRW 5.5% per month, and that the above loan to the plaintiff as the ground for the claim against the plaintiff, the Seoul Central District Court 2012Gau211686, which made the loan as the ground for the claim against the plaintiff.
A lawsuit of demurrer is a claim for the exclusion of executory power held by the executory power holder on the ground that the debtor raises an objection against the "claim indicated in the executory power holder" and the creditor is a new claim that is not indicated in the executory power holder in the lawsuit of objection.