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1. Compulsory execution against the Defendant’s Plaintiff based on the payment order dated January 31, 2013 by the Seoul Central District Court.
Reasons
1. Basic facts
A. On January 15, 2013, the Defendant filed an application for payment order against the Plaintiff by asserting the following:
(Seoul Central District Court 2013 tea3780). The Plaintiff did not pay the credit card payment obligation to C Co., Ltd., but C Co., Ltd transferred the claim against the Plaintiff (hereinafter “instant claim”) to D Co., Ltd. on or around April 30, 2007, E Co., Ltd acquired the instant claim from D and transferred it to the Defendant on or around May 10, 2010.
B. On January 31, 2013, the foregoing court ordered the Defendant to pay “the Plaintiff shall pay the Defendant the amount of KRW 2,94,291 and the amount of delay damages for KRW 876,291 (hereinafter “instant payment order”). The original copy was served on the Plaintiff on February 7, 2013. The instant payment order became final and conclusive on February 22, 2013 due to the Plaintiff’s failure to file an objection.
[Evidence] Facts without dispute, Gap evidence No. 1, the purport of the whole pleadings
2. Determination
A. According to the facts acknowledged as above, the claim of this case had already arrived before April 30, 2007, and since the defendant's application for the payment order of this case was filed on January 15, 2013, which was five years after it was filed, the claim of this case had already expired before the application for the payment order of this case was filed.
Therefore, barring any special circumstance, compulsory execution based on the payment order of this case against the plaintiff should be denied.
B. The defendant asserts whether to waive the prescription interest, since the plaintiff did not raise an objection even after receiving the original copy of the payment order of this case, it would have waived the prescription interest.
However, in order to recognize the waiver of the benefits of prescription after the completion of prescription, there is a need for an effective intent that an obligor who receives the benefits of prescription will not receive legal benefits from the completion of prescription (see, e.g., Supreme Court Decision 2014Da32458, Jul. 11, 2017).