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1. The part against the defendant, which exceeds the following part of the judgment of the first instance, shall be revoked.
Reasons
1. The Defendant asserted that, on June 3, 2014, the Defendant loaned the Plaintiff the amount of KRW 5,300,000,000 to the Changwon District Court Decision 2014Da123, April 5, 2004, KRW 14,000,000 on April 14, 2004, KRW 5.3 million on April 15, 2004, and filed an application for a payment order seeking the payment of the above loan, and that “the Plaintiff paid the Defendant the amount calculated at the rate of KRW 5,300,00 and KRW 20% per annum from the day following the delivery date of the original copy of the payment order to the day of full payment.” The payment order (hereinafter “instant payment order”) was issued on June 3, 2014, and the instant case became final and conclusive on June 27, 2014.
[Ground of recognition] Facts without dispute, entry of evidence No. 3, purport of the whole pleadings
2. The parties' assertion
A. Although the Plaintiff asserted that he borrowed KRW 2 million from the Defendant on April 5, 2004, the loan was extinguished after full repayment at that time, and the remaining KRW 3,00,000 did not have been borrowed by the Plaintiff, compulsory execution based on the payment order of this case should be denied.
B. The defendant's assertion that the defendant lent a total of KRW 4.3 million to the plaintiff on April 5, 2004, KRW 1 million on April 14, 2004, and KRW 4.3 million on April 15, 2004, and the plaintiff did not repay a loan on April 5, 2004.
3. Determination
A. In the case of a payment order for which the burden of proof has 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). In the lawsuit of demurrer, the burden of proof as to the grounds for objection to the claim ought to comply with the principle of allocation of burden of proof in general civil procedure.
Therefore, if the plaintiff asserts that the claim was not established in a lawsuit claiming objection against the established payment order, the defendant is liable to prove the cause of the claim.