1. The Defendant’s order for payment was issued on August 30, 2016 by the Changwon District Court (Seoul District Court Decision 201Da376, August 30, 2016.

Basic Facts

The Defendant applied for a payment order against the deceased A (hereinafter “the deceased”) seeking the return of the loan (CY 2016 tea 376), and the above court issued a payment order (hereinafter “instant payment order”) stating that “The deceased shall pay 10,000,000 won and 15% interest per annum to the Defendant from September 2, 2016 to the date of complete payment” (hereinafter “the Defendant’s payment order”). The above payment order was finalized around that time.

On March 28, 2017, the Defendant received a seizure and collection order (this court 2017TTT 417) against bank deposit claims possessed by the Deceased on March 28, 2017.

Since then, the adult guardian C filed the instant lawsuit on August 28, 2017 on behalf of the deceased by asserting that there was no debt borrowed under the instant payment order.

On February 14, 2018, the deceased died on February 14, 2018, during which the instant lawsuit was pending, and the Plaintiff C, D, and E, the deceased’s heir, took over the instant lawsuit.

[Ground of recognition] The plaintiff asserts that there is no dispute, Gap's statements and arguments as to Gap's 1 through 5, the purport of the whole argument, and the plaintiff's assertion that the execution based on the payment order of this case should not be denied because the deceased did not borrow money from the defendant.

A payment order does not take place even if it becomes final and conclusive, and thus, the restriction is not applied to a claim objection lawsuit based on the time limit of res judicata (Article 58(3) of the Civil Execution Act). In a lawsuit of objection, in a trial of objection, the existence or establishment of the claim may be deliberated and determined on all the claims indicated in the payment order. In such cases, the burden of proving the existence or establishment of the claim lies on the defendant in the lawsuit of objection, i.e., the defendant in the lawsuit of objection, and where the plaintiff claims the facts constituting the cause of disability or extinguishment of the right,

Supreme Court Decision 201 June 201