[1] Whether the progress of the period for filing an objection is suspended where a ground for suspending a lawsuit, such as a decision on commencing the rehabilitation procedure, occurs within the period for filing an objection after a payment order was served (affirmative

[2] Whether an action of demurrer may be brought against a payment order in an uncertain state (negative)

[3] The case reversing the judgment of the court below and rejecting the lawsuit on the merits of the lawsuit on the premise that the payment order became final and conclusive, in case where Gap filed an application for the payment order against Eul corporation for the payment of promissory notes against Eul corporation and served the payment order on Eul corporation on the same day, and thereafter the decision was rendered on the commencement of the rehabilitation procedure for Eul corporation, and the parties failed to take over the payment order

[1] Urging procedure is a special litigation procedure to enable a creditor to obtain executive titles in a simplified and speedy manner with respect to a claim aimed at paying a certain amount of money, other substitute goods and securities (Article 462 of the Civil Procedure Act), and the provisions concerning a lawsuit shall apply mutatis mutandis to the extent not inconsistent with its nature (Article 464 of the Civil Procedure Act). Therefore, where a cause for interruption of a lawsuit, such as a decision on commencing a rehabilitation procedure, occurs within the period for filing an objection after the payment order was served, Article 247(2) of the Civil Procedure Act shall apply mutatis mutandis, and the progress

[2] A lawsuit of demurrer against a claim refers to a lawsuit seeking the exclusion of executive force by asserting the substantive reasons as to a claim indicated in the executive title, such as a final judgment, which becomes final and conclusive by the debtor (Article 44 of the Civil Execution Act), and the payment order is an effective executive title. There is no objection, or there is the same effect as a final and conclusive judgment at the time the objection is withdrawn or the decision of dismissal becomes final and conclusive (Article 474 of the Civil Procedure Act). The payment order in an undetermined state cannot become an effective executive title, and thus, a lawsuit of

[3] In a case where Gap filed an application for a payment order against Eul corporation for a payment of a promissory note against Eul and served the payment order on Eul corporation on the same day, and the parties did not take over the procedure of demand procedure, the case reversing the judgment of the court below and rejecting the lawsuit on the merits of the lawsuit on the premise that the payment order became final and conclusive, even though the above payment order was suspended due to the decision on commencement of the rehabilitation procedure for Eul corporation, and the above payment order was not in a final and conclusive state since the time limit for raising an objection was suspended, the judgment of the court below is reversed and the lawsuit is dismissed

[1] Articles 247(2), 462, and 464 of the Civil Procedure Act; Article 59 of the Debtor Rehabilitation and Bankruptcy Act / [2] Article 474 of the Civil Procedure Act; Article 44 of the Civil Execution Act / [3] Articles 247(2), 462, 464, and 474 of the Civil Procedure Act; Article 44 of the Civil Execution Act; Article 59 of the Debtor Rehabilitation and Bankruptcy Act

Patho, Satho, Co., Ltd. (Law Firm Barun Law, Attorneys Gangnam-man et al., Counsel for the defendant-appellant)

Defendant

Seoul Central District Court Decision 2011Na53392 Decided July 11, 2012

The judgment of the court of first instance is reversed, and the judgment of the court of first instance is revoked. The litigation costs are assessed against the plaintiff.

The grounds of appeal are examined.

Urging procedures are special litigation procedures for allowing creditors to obtain title of execution in a simplified and speedy manner with respect to a claim aimed at paying a certain amount of money and other substitute goods or securities (Article 462 of the Civil Procedure Act), and the provisions concerning lawsuits shall apply mutatis mutandis within the scope not inconsistent with its nature (Article 464 of the Civil Procedure Act). Therefore, where a cause for interruption of lawsuit, such as commencement of rehabilitation procedures, etc., occurs within the period for filing an objection after a payment order was served, Article 247(2) of the Civil Procedure Act shall apply mutatis mutandis, and the progress of the period for filing

Meanwhile, a lawsuit of demurrer against a claim refers to a lawsuit seeking the exclusion of executive force by asserting the substantive reasons as to a claim indicated in the executive title, such as a final judgment rendered by the debtor, etc. (Article 44 of the Civil Execution Act), and the payment order is subject to the valid executive titles. There is no objection, or there is the same effect as a final and conclusive judgment at the time the objection is withdrawn or the decision of dismissal becomes final and conclusive (Article 474 of the Civil Procedure Act). The payment order in an uncertain state cannot become an effective executive title, and thus, a lawsuit of demurrer seeking the

According to the reasoning of the lower judgment and the record, the Defendant filed an application for the payment order claiming the payment of the instant promissory note against Patom Co., Ltd. on August 30, 2010 and served on the said company on September 3, 2010, the payment order of Seoul Central District Court No. 2010 tea60764, Sept. 3, 2010. However, the Defendant issued a decision to commence rehabilitation proceedings (Seoul Central District Court No. 2010hap93, Jun. 93, 201) with respect to the said company on the same day. The parties

If facts are different, litigation procedures concerning property are suspended due to the decision on commencing the rehabilitation procedure for the above company, and the above payment order is suspended and the period for raising the objection is not fixed, so the objection suit against this is not allowed.

Nevertheless, the court below made a decision on the merits on the premise that the above payment order was finalized. In so doing, it erred by misapprehending the legal principles as to executive titles subject to a lawsuit of interruption of litigation proceedings or objection, thereby affecting the conclusion of the judgment. The ground of appeal assigning this error is with merit.

Therefore, without further proceeding to decide on the remaining grounds of appeal, the judgment of the court below is reversed, and this case is sufficient to be tried by the court, and thus, the judgment of the court of first instance is revoked, and the lawsuit of this case is dismissed, and the total cost of the lawsuit is borne by the losing party. It is so decided as per Disposition

Justices Lee Sang-hoon (Presiding Justice)