1. The plaintiff's claim is dismissed.

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

1. On October 14, 2011, the Defendant filed a lawsuit seeking reimbursement against the Plaintiff by this Court No. 2011 Ghana161378.

On October 17, 2011, the Court rendered a decision on performance recommendation (hereinafter “decision on performance recommendation of this case”) to the effect that “the Plaintiff shall pay to the Defendant the amount of KRW 3,369,639 and KRW 1,954,231 per annum from January 1, 201 to the service date of a duplicate of the complaint of this case, and the amount calculated at the rate of 15% per annum from the next day to the day of full payment (hereinafter “the instant claim”).” The said decision on performance recommendation was finalized as it is.

[Reasons for Recognition] The entry of Gap evidence No. 2 and the purport of the whole argument

2. Judgment on the plaintiff's assertion

A. The plaintiff asserted that the plaintiff did not enter the contract of performance guarantee insurance (payment) and the agreement submitted by the defendant in writing or affix a seal. Thus, the plaintiff did not enter into a performance guarantee insurance contract with the defendant.

Therefore, since the Defendant’s instant claim against the Plaintiff was not established, compulsory execution based on the decision on performance recommendation of this case should be denied.

B. In the case of a final and conclusive payment order, the grounds for failure or invalidation that occurred prior to the issuance of the payment order can be asserted in the lawsuit of objection against the payment order with respect to the claim that was the cause of the claim for 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.

Therefore, if the plaintiff asserts that the claim was not constituted by the defendant in a lawsuit claiming objection against the established payment order, the defendant is liable to prove the cause of the claim.

(See Supreme Court Decision 2010Da12852 Decided June 24, 2010). This is likewise the same in a lawsuit of demurrer seeking the exclusion of the executory power of final and conclusive decisions on performance recommendation.

The ground for the claim of the instant decision on performance recommendation was the same as that of the instant decision on performance recommendation.