1. The defendant's case of return of Suwon District Court 2014Gapo-si court 26940 down payment, etc. against the plaintiff.

1. Basic facts

A. On December 1, 2014, the Defendant filed a lawsuit against the Plaintiff and C seeking the payment of down payment, etc. under this Court No. 2014 Ghana4940, Dec. 15, 2014, and the court rendered a recommendation of execution with the purport that “The Plaintiff and C jointly and severally paid to the Defendant the amount of KRW 5 million and the amount calculated at the rate of 20% per annum from the day following the delivery of the instant complaint to the day of full payment.” The said decision was served on the Plaintiff on December 29, 2014, and became final and conclusive on January 13, 2015.

(hereinafter referred to as “instant decision on performance recommendation”). (b)

On the other hand, the decision of performance recommendation for C was not final and conclusive as the impossibility of service, and the trial was conducted by service by public notice, and on April 30, 2015, the decision against the defendant was rendered and finalized.

[Ground] Facts without dispute, Gap evidence 1, 4, Eul evidence 3, the purport of the whole pleadings

2. The assertion and judgment

A. The gist of the Plaintiff’s assertion 1) The Plaintiff did not have entered into a real estate exchange contract with the Defendant, and did not have granted a real estate broker C an authority to act on behalf of the Plaintiff for a personal reason. 2) The Defendant’s assertion that: (a) the Plaintiff granted a substitute authority to C to conclude an exchange contract with the Defendant on behalf of the Plaintiff; (b) sold real estate to a third party for the purpose of the exchange contract; and (c) the execution of the above exchange contract was impossible; and (d) the Plaintiff is obliged to pay the Defendant a performance bond of KRW 3 million and penalty of KRW 5 million in total.

B. 1) Determination of performance recommendation does not take place even after the final and conclusive decision has become final and conclusive, and thus, the restriction pursuant to the time limit of res judicata does not apply to a lawsuit seeking an objection (Article 5-8(3) of the Trial of Small Claims Act, and in a lawsuit seeking the objection, the determination of performance recommendation may be made on all the claims indicated in the decision on performance recommendation. In such a case, the burden of proof as to the existence or establishment of the claim is the creditor, i.e., the claim objection suit.