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1. The Defendant’s order based on the payment order (Seoul District Court Order No. 2014Da1439, May 23, 2014) against the Plaintiff was issued on May 23, 2014.
Reasons
1. Basic facts
A. On May 21, 2014, the Defendant requested a payment order against the Plaintiff for KRW 10,500,600 for the purchase price of goods under Daejeon District Court Branch Branch Decision 2014Da1439, May 21, 2014, and received the payment order (hereinafter “instant payment order”) in accordance with the purport of the application.
The instant payment order was finalized as it is.
B. The cause of the claim for the instant payment order was subcontracted by C (hereinafter “C”) and supplied Shoman Construction Work site of Dsawa Co., Ltd. on credit. However, C did not receive the material price from C. However, on August 30, 2013, C consented to the Defendant to pay directly the amount equivalent to KRW 10,500,60 of the Defendant’s material price out of the construction price to be paid by C from the Plaintiff. Since the Plaintiff also approved, the Plaintiff was obligated to pay KRW 10,500,60 to the Defendant.
【Facts without dispute over the grounds for recognition, Gap evidence 2, Eul evidence 2-2, and the purport of the whole pleadings
2. The parties' assertion
A. Although the Plaintiff’s assertion and the Defendant did not have any credit relationship between the Plaintiff and the Defendant, the Defendant filed an application for the instant payment order against the Plaintiff on the ground that the Plaintiff had a claim against the same company, and thus, the instant payment order was issued. Therefore, compulsory execution based on the instant payment order shall not be allowed.
B. On August 30, 2013, the Defendant’s assertion that the Plaintiff was liable to pay KRW 10,500,600,000 to the Defendant, as the Plaintiff consented to the direct payment of KRW 10,500,60.
3. Determination
A. In the case of a payment order for which the burden of proof is confirmed, the reason for failure, invalidation, etc. occurred prior to the issuance of the payment order may be asserted in a lawsuit of objection against the payment order (see Articles 58(3) and 44(2) of the Civil Execution Act).