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1. The Defendant’s compulsory execution against the Plaintiff based on the payment order in the Suwon District Court 2015 tea289.
Reasons
1. On January 27, 2015, the Defendant applied for a payment order against the Plaintiff as Suwon District Court 2015 tea289, and the above court issued the payment order to the Plaintiff on January 27, 2015, “The Plaintiff shall pay to the Defendant the sum of KRW 10,000,000 and the amount calculated by adding the amount at the rate of 20% per annum from the day following the day when the original copy of the instant payment order was served to the day when the original copy of the instant payment order was fully repaid,” and around that time, the fact that the above payment order was finalized (hereinafter “instant payment order”) is either disputed between the parties, or can be recognized by comprehensively taking into account the purport of the entire pleadings
2. The parties' assertion
A. The Plaintiff entered into an agreement to receive 40% of air fares from C while importing fireproof stones necessary for supplying facilities to the Plaintiff Company C, and received KRW 10,000,00 in the name of the Defendant, who is the inside director and the representative director of the Defendant, who is referred to as the major shareholder, from C, and did not borrow money from the Defendant.
B. The Defendant remitted to the Plaintiff KRW 10,000,000 on May 7, 2013.
3. Since the judgment of the payment order has become final and conclusive and the res judicata does not arise, the obligor in the payment order can assert the absence or invalidity of the claim on the grounds before the payment order is issued, and where the obligor claims the absence of the claim on the payment order established and files a lawsuit with the obligor, the burden of proof on the existence or establishment of the claim exists in the obligee who requested the payment order.
In addition, even if there is no dispute between the parties as to the fact that money was received, when the defendant contests the cause of the receipt of money, he/she bears the burden of proof against the plaintiff who asserts the loan (see Supreme Court Decisions 72Da221, Dec. 12, 1972; 2014Da26187, Jul. 10, 2014); and the plaintiff is the defendant.