1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the Plaintiff.

Purport of claim and appeal

The first instance court.

1.The following facts of recognition may be found either in dispute between the parties or in full view of the purport of the entire pleadings in each entry in Gap evidence 1 and 4 (including the branch numbers with which the serial numbers are attached):

The Defendant remitted to the Plaintiff KRW 3,200,000 on August 10, 2010, and KRW 5,000,000 on November 1, 201 to the Plaintiff’s account.

B. On October 15, 2013, the Defendant applied for a payment order against the Plaintiff as Seoul Central District Court 2013 tea69190. On October 29, 2013, the said court issued an order to pay to the Plaintiff 8,200,000 won with 5% per annum from October 11, 2013 to the delivery date of the original copy of the payment order, and 20% per annum from the next day to the delivery date of the original copy of the payment order (hereinafter “instant payment order”). The payment order was finalized on November 21, 2013.

2. Assertion and determination

A. The Plaintiff asserted that KRW 3,200,000, which was borrowed from the Defendant on August 10, 2010, was disbursed for the necessary expenses at the Defendant’s construction site designated by the Plaintiff. Since the Plaintiff repaid KRW 5,00,000 on November 10, 2010, there is no loan obligation against the Defendant, compulsory execution based on the instant payment order should be denied.

B. Since the judgment payment order has become final and conclusive and the res judicata does not arise, the obligor on the payment order can assert the absence or invalidity of the claim on the grounds before the payment order is issued. As such, where the obligor files a lawsuit with the absence of the claim on the payment order established, the obligee who applied for the payment order has the burden of proving the existence or establishment of the claim, and the obligor bears the burden of proving the obstacle or extinction of the right, such as the invalidity or extinguishment of the claim by repayment.

In the case of this case, the defendant claimed that he borrowed a total of KRW 8,200,000 from the plaintiff, but repaid all of them, and thus, the claim under the payment order of this case.