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1. The defendant shall pay 40 million won to the plaintiff and 20% per annum from May 7, 2009 to the day of complete payment.
Reasons
1. Comprehensively taking account of the overall purport of the pleadings as to the grounds for the claim Gap's evidence Nos. 1 and 3, the court below issued a payment order against the defendant for the repayment of the loan by Goyang-si District Court 2009Da997, Apr. 29, 2009, stating that "the defendant shall pay to the plaintiff 40 million won and damages for delay calculated at the rate of 20% per annum from the day after the original copy of the payment order was served on him/her to the day of complete payment" (hereinafter "pre-payment order decision"). The above decision is delivered on May 6, 2009 and confirmed on May 21, 2009, and it is evident that the plaintiff applied for the payment order of this case to suspend the expiration of the period of extinctive prescription on July 3, 2019.
Therefore, it is reasonable to deem that the application for the instant payment order is a re-litigation for the interruption of extinctive prescription, and barring any special circumstance, the Defendant is obligated to pay to the Plaintiff 40 million won and damages for delay calculated at the rate of 20% per annum from May 7, 2009 to the date of full payment.
2. Judgment on the defendant's assertion
A. The Defendant’s motion for the instant payment order filed by the Plaintiff with the content of the Defendant was ten years after the expiration of the extinctive prescription period of the claim based on the prior payment order.
B. Where a judicial claim is rejected, the interruption of prescription has no effect (Article 170(1) of the Civil Act), and where a judicial claim is made within six months and six months, the period of prescription shall be deemed to have been interrupted by the initial judicial claim (Article 170(2) of the Civil Act). It is reasonable to view that “judicial claim” is not limited to “instigation of a lawsuit” to receive a final judgment, but includes an application for payment order.
(see, e.g., Supreme Court Decision 2011Da54686, Nov. 10, 201). From May 21, 2009, for which the instant payment order became final and conclusive.