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1. The Defendant’s claim for loans (No. 2015) against the Plaintiff is enforceable.
Reasons
1. Basic facts
A. On December 11, 2015, the Defendant filed a lawsuit against the Plaintiff seeking the payment of loans amounting to KRW 20 million with the Incheon District Court Decision 2015Da492630, supra.
B. On January 6, 2016, the said court rendered a decision of performance recommendation, and the said decision of performance recommendation became final and conclusive on January 26, 2016.
[Ground of recognition] Facts without dispute, Gap evidence Nos. 10 and 11, the purport of the whole pleadings
2. Determination as to the cause of action
A. In the case of a payment order for which relevant legal principles have become final and conclusive, the grounds for failure, invalidation, etc. arising prior to the issuance of the payment order may be asserted in the lawsuit of demurrer against the payment order (see Articles 58(3) and 44(2) of the Civil Execution Act). The burden of proving the grounds for objection in the lawsuit of objection shall also be in accordance with the principle of allocation of burden of proof in general civil procedure.
Therefore, in a lawsuit of demurrer against a claim for a final and conclusive payment order, where the plaintiff claims that the defendant's claim had not been constituted, the defendant is liable to prove the cause of the claim, and where the plaintiff claims facts that fall under the disability or cause of extinction of the right, such as the invalidity or extinguishment of the claim as a false declaration of prior agreement
(see, e.g., Supreme Court Decision 2010Da12852, Jun. 24, 2010). Such a legal doctrine ought to be deemed likewise applicable to a final and conclusive decision on performance recommendation.
(See Articles 5-8(3) and 44(2) of the Trial of Small Claims Act. (b)
The Defendant asserts that the Plaintiff each lent KRW 10 million to the Plaintiff on August 9, 2012, and KRW 10 million on August 19, 2013.
The plaintiff denies this.
C. It is recognized that the Defendant lent KRW 20 million to the Plaintiff solely on the basis of each of the statements in Gap's 10, 11, and Eul's 1 and 2.