beta
Text
1. The Defendant’s payment order issued on November 13, 2013 in the loan case No. 2013 tea 4709 against the Plaintiff.
Reasons
1. Basic facts
A. The Defendant filed an application for payment order against the Plaintiff and the Plaintiff’s father, Ulsan District Court No. 2013 tea4709, and the said court issued a payment order on November 13, 2013, stating that “C shall pay the Defendant KRW 40 million and its delay damages, and the Plaintiff shall jointly and severally pay the Plaintiff KRW 18.6 million and its delay damages with C.”
(hereinafter “instant payment order”). B.
The original copy of the instant payment order against the Plaintiff was served to C on November 18, 2013, and became final and conclusive on December 3, 2013.
C. On August 28, 2015, the Defendant received a collection order for the seizure and collection of the claim against the Plaintiff as Seoul Eastern District Court 2015TT701, which was based on the instant payment order, as the debtor, and the school juristic person’s National University as the third debtor.
[Ground of recognition] Unsatisfy, entry of Gap evidence 1 to 3, purport of whole pleadings
2. Determination
A. 1) The Plaintiff’s assertion 1) The Plaintiff did not have jointly and severally guaranteed the Defendant’s obligation to the Defendant, so compulsory execution based on the instant payment order against the Defendant should not be allowed. 2) The Defendant’s allegation that the instant payment order was served on the Plaintiff on November 18, 2013, and became final and conclusive as it is, the Plaintiff cannot contest the validity of the said payment order, which has the same effect as the final and conclusive judgment.
B. Although a payment order has become final and conclusive and the res judicata does not take place, the restriction is not applied to a lawsuit of demurrer against the claim based on the time limit of res judicata (Article 58(3) of the Civil Execution Act). In a lawsuit of demurrer against the claim, the determination can be deliberated and determined on all the claims indicated in the payment order. In such a case, the burden of proof on the existence or establishment of the claim is against the defendant in the lawsuit of demurrer against the claim.
(see, e.g., Supreme Court Decision 2006Da73966, Jul. 9, 2009). The Defendant is unable to submit a loan certificate prepared in the name of C and the Plaintiff.