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1. Compulsory execution against the Defendant’s Plaintiff based on the payment order (Seoul District Court Branch 2016 tea 1626).
Reasons
1. Basic facts
A. Nonparty C asserted that “the Plaintiff borrowed KRW 140 million from C on June 28, 2016.” Nonparty C filed an application for payment order against the Plaintiff in the Daegu District Court Port Branch (No. 2016 tea 1626) seeking payment of the said KRW 140 million and its delay damages.
B. On September 21, 2016, the above court issued a payment order stating that “the Plaintiff shall pay C the amount of KRW 140 million and the amount calculated at the rate of 15% per annum from the day following the delivery date of the payment order to the day of full payment (hereinafter “instant payment order,” and the bonds based thereon “the bonds of this case”). The above payment order was finalized around that time.
C. On December 2, 2016, the Defendant acquired the instant claim from C, and received a seizure and collection order as to the Plaintiff’s benefit claim, etc. against D Co., Ltd., by granting an execution clause for succession to the instant payment order on December 21, 2016, under the Daegu District Court Port Branch Branch Decision 2016TTT5344, supra.
[Ground of recognition] Facts without dispute, entry of Gap 1 through 5 evidence (including each number), the purport of the whole pleadings
2. Determination as to the cause of action
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 the lawsuit of demurrer against the payment order (see Articles 58(3) and 44(2) of the Civil Execution Act). In the lawsuit of objection, the burden of proof as to the grounds for objection to the claim should be in accordance with the principle of allocation of burden of proof in general civil procedure.
Therefore, when the plaintiff claims that the defendant's claim was not established in a lawsuit claiming objection against the final payment order, the occurrence of rights such as the plaintiff's claim is responsible for proving the fact of the cause of the claim, and the plaintiff's claim is invalid or extinguished as a false declaration of agreement.