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1. The Defendant’s payment order against the Plaintiff is based on the Seoul Eastern District Court Order 2016Hu21982 dated July 5, 2016.
Reasons
1. Basic facts
A. On May 31, 2016, the Defendant lent KRW 3 million to B at 27.9% per annum of interest and overdue interest rate, and on May 30, 2021 due date.
B. The Defendant, at the time of the Seoul Eastern District Court 2016 tea21982, (hereinafter “instant loan agreement”), notified the Plaintiff that “the Plaintiff jointly and severally and severally guaranteed the above loan obligations.” On July 28, 2016, the said court issued an order to the effect that “the Plaintiff shall pay to the Defendant the amount of KRW 3 million and the amount calculated at the rate of KRW 27.9% per annum from June 16, 2016 to the date of full payment” (hereinafter “instant payment order”). The said order became final and conclusive around that time.
[Reasons for Recognition] Unsatisfy, Gap evidence 4, Eul evidence 1, the purport of the whole pleadings
2. Determination
A. The plaintiff asserts that the plaintiff refused to provide joint and several sureties because of the difference between the plaintiff's idea during the process of recording with the defendant for the joint and several sureties regarding the loan agreement of this case, and that there was no fact that the contract was prepared for the joint and several sureties. The defendant asserts that the plaintiff submitted the joint and several sureties contract from the plaintiff before paying the loan of this case
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 (Articles 58(3) and 44(2) of the Civil Execution Act). In a lawsuit of demurrer against the claim, the determination can be deliberated and determined on all the claims stated in the payment order. In this case, the burden of proving the existence or establishment of the claim exists to the defendant in the lawsuit of demurrer against the claim.
(Seoul High Court Decision 2005Na106724 decided Oct. 11, 2006; Supreme Court Decision 2006Da73966 Decided July 9, 2009). The plaintiff against the defendant is against B.