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Cases
2015 short-term 30 Objection
Plaintiff
A
Defendant
B
Conclusion of Pleadings
January 13, 2017
Imposition of Judgment
February 24, 2017
Text
1. The defendant's compulsory execution against the plaintiff in this Court No. 2012 next 282 is denied.
2. This Court approves a ruling of the suspension of compulsory execution on April 17, 2015 with respect to cases of applying for the suspension of compulsory execution No. 2015 Chicago1.
3. The costs of lawsuit shall be borne by the defendant.
4. Paragraph 2 can be provisionally executed.
Purport of claim
The same shall apply to the order.
Reasons
1. In the case of a final and conclusive payment order, the grounds for failure or invalidation, etc. arising prior to the issuance of the payment order may be asserted in a lawsuit of demurrer against the payment order (see Articles 58(3) and 44(2) of the Civil Execution Act). The burden of proof as to the grounds for objection in a lawsuit of objection shall be in accordance with the principle of allocation of the burden of proof in general civil procedure. Thus, in a case where the plaintiff asserts that the claim for the payment order was not established in a lawsuit of objection against the final and conclusive payment order, the defendant is liable to prove the grounds for the claim (see Supreme Court Decision 2010Da12852, Jun. 24, 2010).
2. The cause of the claim for the payment order indicated in the order is that the plaintiff jointly and severally guaranteed against C, who was the defendant's satise of leasing KRW 10 million to the plaintiff's satise of the defendant. According to the records of this case, Eul evidence No. 1 (Evidence) is recognized that C has affixed the plaintiff's seal with the plaintiff's name, resident number, and address stated in the joint and several surety column without the plaintiff's consent. Thus, this cannot be used as evidence and there is no other evidence as to the existence of the defendant's joint and several surety debt against the plaintiff. Therefore, the enforcement of the payment order of this case should be excluded.
3. The plaintiff's claim is reasonable, and it is so decided as per Disposition.
Judges
Judges Kim Yong-Na