(영문) 부산지방법원 2020.12.09 2020가단304358

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(영문) 부산지방법원 2020.12.09 2020가단304358

청구이의

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1. The defendant's compulsory execution against the plaintiff was made based on the payment order in Busan District Court 201j12544.

Reasons

1. Basic facts

A. On July 31, 2001, the Plaintiff’s husband B borrowed KRW 100 million from the Defendant, and the Plaintiff jointly and severally guaranteed the above loan obligation against the Defendant B (hereinafter “the principal obligation of this case”).

B. The Defendant, as Busan District Court Decision 201Da12544, claimed that the amount of outstanding debt is KRW 85,100,000 among the principal debt of the instant case, and applied for a payment order seeking payment of joint and several liability therefor. On July 4, 2011, the Defendant issued a payment order against the Plaintiff stating that “the Plaintiff shall pay to the Defendant the amount of KRW 85,100,000 and the amount calculated at the rate of KRW 20% per annum from the day following the delivery of the original copy of the payment order to the day of complete payment (hereinafter “instant payment order”). The said payment order was finalized on September 22, 2011.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 and 2, the purport of the whole pleadings

2. The Plaintiff’s debt under the payment order of this case is a joint and several liability for the principal debt of this case. Since the principal debt of this case became extinct due to the completion of prescription, the obligation under the payment order of this case was extinguished according to the subsidiary nature of the guaranteed obligation.

On the other hand, although B, as the principal obligor, paid the Defendant the amount of KRW 15.2 million and the amount of unpaid obligation remains 84.8 million, the Defendant applied for a payment order against the Plaintiff with the claim amount of KRW 85.1 million and received the payment order of this case.

Therefore, compulsory execution based on the instant payment order is not allowed.

3. Determination

A. On August 31, 2015, the Defendant prepared a notarial deed of debt repayment contract (hereinafter “notarial deed of this case”) with the following content that the Defendant would make installment payments with respect to the principal obligation of this case between B and B.

Article 6 (Loss of Benefit of Time) The debtor falls under any of the following subparagraphs:

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