(영문) 서울중앙지방법원 2015.03.03 2013가단5195720

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(영문) 서울중앙지방법원 2015.03.03 2013가단5195720

청구이의

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1. The defendant's payment order against the plaintiff is based on the original copy of the collection order in Seoul Central District Court 2013 tea 2404.

Reasons

1. Basic facts

A. On March 27, 2012, the Defendant applied for a payment order against B with the Seoul Central District Court Decision 2012 tea5618, and received an order to pay KRW 13,000,000 and delayed damages. The above payment order was finalized on May 3, 2012.

B. On March 28, 2013, the Defendant issued a seizure collection order (the claimed amount of KRW 13,533,535) against the Plaintiff as the title of execution of the above payment order, which was issued by the Gwangju District Court 2012TTTTTT No. 10850, and applied for a payment order (the Plaintiff of this case) against the Plaintiff as the Seoul Central District Court 2013 tea2404 against the Plaintiff, and the obligor (the Plaintiff of this case) pays to the obligee (the Defendant of this case) 13,533,535 won and the amount calculated at the rate of 20% per annum from the day following the delivery of the original copy of the instant payment order to the day of full payment. The instant payment order was finalized on July 12, 2013.

[Ground of recognition] Facts without dispute, entry of Gap evidence 1 to 11, purport of the whole pleadings

2. Determination

A. An order of payment does not take place even if it becomes final and conclusive and the res judicata does not apply to a lawsuit of demurrer, and thus, the restriction is not applicable to the time limit of res judicata. Thus, in the trial of the lawsuit of demurrer, the court may deliberate and determine all the claims stated in the order of payment. In this case, the burden of proof for the existence or establishment of the claim is against the defendant in the lawsuit of objection to the claim.

(See Supreme Court Decision 2006Da73966 Decided July 9, 2009). B.

As to the instant case, the Plaintiff is disputing the existence of the claim for the refund of the lease deposit, which is the cause of the claim for the instant payment order, the Defendant must prove the existence of the claim for the refund of the lease deposit against the Plaintiff B.

The entry of Gap evidence 6 and the head of Dong in this Court.

참조판례

-대법원 2009. 7. 9. 선고 2006다73966 판결

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