2014dan20614 Objection

A

B

November 7, 2014

November 28, 2014

1. The defendant's notary public against the plaintiff is not allowed to enforce the compulsory execution based on the No. 3469 of a money loan contract of 2001, which was prepared by the chief of the law firm on September 7, 2001 by the notary public against the plaintiff.

2. This Court shall authorize the ruling of the suspension of compulsory execution made on August 18, 2014 with respect to the case of applying for the suspension of compulsory execution No. 2014 Chicago725.

3. The costs of lawsuit shall be borne by the defendant.

4. Paragraph 2 can be provisionally executed.

The same shall apply to the order.

1. Basic facts

A. On September 7, 2001, the plaintiff, the non-party C, and the defendant entrusted a notary public to the law firm head, and had a notary public prepare a notarial deed of money loan contract No. 3469 (hereinafter "notarial deed of this case") containing the following contents:

"C shall borrow 4.5 million won from the defendant on July 16, 2001 on July 17, 2001, and damages for delay as 25% per annum, and the plaintiff shall jointly and severally guarantee the above principal and interest obligation of C. C, if the plaintiff fails to perform the above monetary obligation to the defendant, it shall be recognized that there is no objection even if it is immediately enforced."

B. Around June 201, the Defendant applied for a compulsory execution of corporeal movables to the Ulsan District Court with the title of execution (the foregoing court 201No. 1630). On June 24, 2011, the said court execution officer commenced compulsory execution, such as seizure of corporeal movables located D 102 Dong 301, Ulsan District Court No. 301, Jun. 24, 201 (hereinafter “instant seizure”).

[Reasons for Recognition] The facts without dispute, Gap 1, 2, Eul 2 and 5, Eul 2 and the purport of the whole pleadings

A. The Parties’ major arguments

(1) The plaintiff's assertion

The claim based on the notarial deed of this case is a commercial bond, and the period of extinctive prescription shall expire five years. Since five years have passed from the due date of the claim on the notarial deed of this case, the above claim was extinguished. The execution against the plaintiff based on the notarial deed of this case by the defendant shall be dismissed.

(2) The defendant's assertion

The period of extinctive prescription against commercial claims is not applicable to claims based on the Notarial Deed of this case, because they are not commercial claims.

B. Determination

(1) The following circumstances, which are acknowledged by the statements in Gap evidence Nos. 1 through 4, and the purport of the entire pleadings, are: (a) the defendant's occupation is written in the notarial deed of this case; (b) C was introduced by the defendant that conducts bond business in the course of identifying the loan; and (c) the defendant borrowed money from the defendant; and (d) the defendant was given a loan on the notarial deed of this case in the course of conducting the bond business or in relation to the business, taking into account the document form and content of the loan certificate (Evidence No. 2) as the basis of the notarial deed of this case, it is reasonable to deem that the loan of this case was made in the course of conducting the bond business. Therefore, it is reasonable to deem that the loan of this case is a commercial bond and the claim on the notarial deed of this case is extinguished by five years

(2) Meanwhile, since the Defendant’s maturity of the claim based on the instant notarial deed was September 14, 2001, the period of extinctive prescription is in progress from the said claim’s maturity, it is true that the period of extinctive prescription has elapsed five years thereafter (the same shall apply to the standard of the application for the instant attachment even if the period of the application for the attachment was set by the period of five years).

(3) Therefore, barring any special circumstance, barring any special circumstance, the Defendant’s claim based on the instant notarial deed has expired by the lapse of the extinctive prescription period, and the Defendant’s execution against the Plaintiff based on the instant notarial deed shall be dismissed.

3. As to the defendant's defense

A. The defendant's major assertion

Even if the claim on the instant notarial deed has expired by the lapse of the extinctive prescription period, the Plaintiff approved the obligation on the instant notarial deed by remitting KRW 680,000 to the Defendant on June 27, 2011, and renounced the benefit of extinctive prescription, and thus, the Defendant’s claim on the instant notarial deed continues to exist.

B. According to the statement in Eul evidence No. 3, the fact that the plaintiff remitted 680,000 won to the defendant on June 27, 2011 is recognized. However, due to the above fact of recognition, it is insufficient to recognize that the plaintiff approved the obligations under the notarial deed of this case or renounced the benefit of extinctive prescription, and there is no other evidence to

Rather, in light of the following circumstances: (a) facts without dispute; (b) evidence Nos. 1 through 4; (c) evidence Nos. 2 and 5; and (c) circumstances arise in the entire purport of the pleadings; (d) the Defendant seized any tools attached to the Plaintiff, etc.’s residence as the instant attachment; and (c) the Plaintiff was awarded a successful bid for 6.80,000 won of the goods attached to the said procedure (successful bid amount is deemed offset against the execution bond); and (d) the Plaintiff later remitted 6.80,000 won to the Defendant to purchase any tools awarded a successful bid, as the Plaintiff did, as seen earlier; and (e) the Plaintiff was deemed to have remitted 6.88,00 won to the Defendant to purchase any tools awarded a successful bid. As such, the Plaintiff’s remittance cannot be said to have approved the obligation on the instant

The defendant's above assertion is without merit.

4. Conclusion

If so, the plaintiff's claim is reasonable and acceptable.

Judges Sock-in