1. The Defendant’s decision on performance recommendation for the loan case against the Plaintiff is based on the Busan District Court Decision 2016 Ghana12822.

Basic Facts

On February 2, 2011, the Defendant borrowed money from D by means of remitting KRW 20 million to the Plaintiff’s account (hereinafter “instant money”).

On November 2, 2016, the Defendant filed a lawsuit against the Plaintiff to the effect that the Plaintiff would pay the instant amount of KRW 20,000,000,000 and damages for delay thereof (hereinafter “instant decision on performance recommendation”) with the competent court. On February 16, 2017, the said court rendered a decision on performance recommendation (hereinafter “decision on performance recommendation”), and the said decision was served on the Plaintiff on February 23, 2017, and became final and conclusive around that time.

[Grounds for recognition] Fact-finding, Gap evidence No. 1, the argument of the purport of the whole pleadings, and the argument by the plaintiff of the judgment party asserted that since D traded with the defendant using the plaintiff's passbook, and there is no claim and debt relationship between the plaintiff and the defendant, compulsory execution based on the decision of execution recommendation of this case should be denied. Accordingly, the defendant did not state any specific position at the time when the plaintiff extended the money to the plaintiff's passbook with the plaintiff's passbook with the plaintiff's implied consent on the part of the plaintiff upon receiving a request for lending money from D and the plaintiff's implied consent. Thus, the plaintiff asserted that D and the defendant are jointly obligated to pay the money of this case.

Judgment

As the decision on performance recommendation does not take place even if res judicata has become final and conclusive, the restriction is not applied to a lawsuit seeking an objection against such decision based on the time limit of res judicata (Article 5-8(3) of the Trial of Small Claims Act). In a lawsuit seeking the objection, the deliberation and determination of all the claims indicated in the decision on performance recommendation may be made on the grounds of the relevant decision. In such cases, the burden of proving the existence or establishment of the claim is the defendant in the lawsuit claiming an objection.

In light of the above legal principles, the Defendant’s instant money to D.