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1. The Defendant’s loan case against the Plaintiff on May 2, 2018, the Changwon District Court Kimhae-si Court 2017 Ghana2620.
Reasons
1. Basic facts
A. The Defendant filed a lawsuit against the Plaintiff on the claim for loans with the Changwon District Court Decision 2017Gau22620, Changhae District Court Decision 2017Gau2620.
B. On December 22, 2017 in the foregoing case, a decision on performance recommendation (hereinafter “decision on performance recommendation of this case”) was made on December 22, 2017, stating that “the Plaintiff shall jointly and severally with C pay 4,190,000 won and 15% interest per annum from the day following the delivery of a copy of the complaint of this case to the day of full payment (hereinafter “the decision on performance recommendation of this case”). The decision was finalized on May 2, 2018
C. On October 25, 2017, the Defendant remitted KRW 4,190,000 to the account under the Plaintiff’s name.
[Ground of recognition] Unsatisfy, Gap evidence No. 1, the purport of the whole pleadings
2. The assertion and judgment
A. The parties asserted that the defendant jointly lent money to the plaintiff and C, and that the plaintiff is obligated to repay the above borrowed money. The plaintiff asserts that the borrowing of money from the defendant is C and the plaintiff did not borrow money, so compulsory execution based on the decision of execution recommendation of this case should be denied.
B. Determination 1) As to the final and conclusive decision of performance recommendation, the grounds arising prior to the relevant decision may also be asserted in a lawsuit seeking objection (see Supreme Court Decision 2006Da34190, May 14, 2009). In a lawsuit seeking objection, where the Plaintiff asserts that the Defendant’s claim was not constituted, the burden of proving the grounds for objection is in compliance with the principle of allocation of the burden of proof in general civil procedure. Therefore, the Defendant is liable to prove the facts of the cause of the claim (see Supreme Court Decision 2010Da12852, Jun. 24, 2010). Meanwhile, when the other party contests a claim for a loan, the party bears the burden of proof as to the leased facts (see Supreme Court Decision 2014Da26187, Jul. 10, 2014). The evidence submitted by the Defendant alone is insufficient to acknowledge that the Plaintiff lent money from the Defendant.