In a lawsuit of objection against a final and conclusive payment order, the burden of proof on the cause of the claim (=the defendant) and the burden of proof on the relevant facts (=the plaintiff)

In the case of a final and conclusive payment order, the grounds for non-existence or invalidation, etc. arising prior to the issuance of the payment order may be asserted in a lawsuit of objection against the payment order. In such a lawsuit of objection, the burden of proof as to the grounds for objection in a lawsuit of objection shall also be in accordance with the principle of the distribution of burden of proof in the general civil procedure. Therefore, in the event that the plaintiff claims that the claims were not established in a lawsuit of objection against the payment order, the defendant is liable to prove the grounds for the claim, and where the plaintiff claims facts that constitute a cause for disability or extinction of the right, such as the invalidity or extinguishment of the claims caused by false declaration in collusion, the plaintiff is liable

Articles 44(2) and 58(3) of the Civil Execution Act

Plaintiff (Attorney Jeong-chul et al., Counsel for the plaintiff-appellant)

Defendant (Bae, Kim & Lee LLC, Attorneys Song Jin-hun et al., Counsel for the defendant-appellant)

Daegu High Court Decision 2009Na3860 decided January 21, 2010

The appeal is dismissed. The costs of appeal are assessed against the defendant.

In the case of a final and conclusive payment order, the grounds for failure, invalidation, etc. arising 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). The burden of proof as to the grounds for objection in a lawsuit of objection shall be in accordance with the principle of allocation of the burden of proof in general civil procedure. Therefore, in the case where the plaintiff claims that the claims for the final and conclusive payment order were not established in a lawsuit of objection, the defendant is liable to prove the facts of the grounds for the claim, and where the plaintiff claims facts that constitute the grounds for failure or extinguishment of the right, such as the invalidity or extinguishment of the claim by means of false declaration or satisfaction by repayment, the plaintiff is liable to prove such facts.

The Plaintiff’s assertion that compulsory execution based on the instant payment order under the premise that the instant money is a loan, not a loan to the Plaintiff of the Defendant, is denied, as the instant money deposited in the Plaintiff’s passbook is not a loan to the Plaintiff. On the grounds stated in its reasoning, the lower court rejected the evidence consistent with the purport that the instant money is a loan, and rejected compulsory execution based on the instant payment order on the ground that there is no other evidence to acknowledge that the Defendant’s credit against the Plaintiff exists.

The above determination by the court below, which held that the burden of proof as to the existence of a loan claim exists to the defendant who is the creditor, is just in accordance with the legal principles as seen earlier, and there is no error of law such as misunderstanding of legal principles as to the burden of proof, misunderstanding of facts or incomplete hearing

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Cha Han-sung (Presiding Justice)