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1. The Defendant’s authentication against the Plaintiff is based on a bill No. 955, 2015, written by C on October 15, 2015.
Reasons
1. Summary of the parties' arguments
A. On October 15, 2015, the Plaintiff’s summary of the Plaintiff’s assertion and D jointly issued a promissory note (hereinafter “instant promissory note”) causing KRW 48 million at face value to secure the Defendant’s obligation to return the down payment of the purchase and sale contract, etc., and D agreed to reduce the underlying claim amounting to KRW 33 million with the Defendant, but agreed to reduce the amount of KRW 17 million. On August 18, 2017, D repaid the Defendant with the said KRW 17 million, and thus, D terminated the underlying claim amounting to the said promissory note.
Therefore, compulsory execution based on the bill No. 955 of 2015, which was prepared by C by a notary public against the plaintiff of the defendant on October 15, 2015, should be denied.
B. The summary of the Defendant’s assertion remains in KRW 33 million among the underlying claim of the Promissory Notes in this case. As such, compulsory execution based on the said notarial deed shall be denied only on the portion exceeding KRW 33 million.
2. In a lawsuit seeking objection, where the plaintiff asserts facts constituting grounds for disability or extinguishment of rights, the plaintiff is liable to prove such facts.
(2) In a case where a promissory note was issued and delivered in a manner that ensures payment of existing obligations, the obligee’s claim for a promissory note exists together with an existing claim for the same purpose, but in a case where the purpose of a part or whole of a claim is achieved through the exercise of a certain claim, other claim is extinguished within the extent that the objective is achieved (see, e.g., Supreme Court Decision 9Da56437, Feb. 11, 2000). Between the parties to the act of a promissory note, the obligor may oppose the obligee by proving that there is no or no underlying claim for a promissory note.
(See Supreme Court Decision 2004Da23578 delivered on July 9, 2004, etc.). The Defendant is a promissory note of this case.