Plaintiff (Attorney Jeong-chul et al., Counsel for the plaintiff-appellant)

Defendant (Law Firm Sejong, Attorneys Lee Dong-dong, Counsel for defendant-appellant)

December 10, 2009

Daegu District Court Decision 2008Gahap979 Decided April 24, 2009

1. The judgment of the first instance shall be revoked. The defendant's compulsory execution against the plaintiff shall not be permitted based on the original payment order of the loan claim No. 2008 tea 593 against the plaintiff;

2. This Court approves the ruling of the suspension of compulsory execution on October 23, 2009 with respect to the case of the suspension of compulsory execution of 2009 Chicago82.

3. All costs of the lawsuit shall be borne by the defendant.

4. Paragraph 2 can be provisionally executed.

The same shall apply to the order.

1. Basic facts

The following facts are either in dispute between the parties or in the entries in Gap evidence 1-1-4, Gap evidence 2, 3, Eul evidence 1-1, 2, and Eul evidence 5-1, 5, and the whole purport of the pleadings can be acknowledged, and there is no other counter-proof.

A. The plaintiff is a person who served as a joint representative director from November 1, 1996 to April 10, 2008 at the non-party 1 corporation for the purpose of manufacturing automobile parts. The defendant is a representative director of the non-party 2 corporation established on August 9, 1994 for the purpose of manufacturing and selling automobile parts. The non-party 2 corporation supplied automobile parts to the non-party 1 corporation.

B. On November 4, 2002, the Defendant deposited KRW 350 million into the Plaintiff’s bank account.

C. On Nov. 4, 2002, the defendant asserted that "the defendant lent 350 million won to the plaintiff on Nov. 4, 2002 after the due date set on Nov. 4, 2003", and applied for a payment order against the plaintiff for the return of the principal and interest of the loan as Daegu District Court racing-Support 2008 tea593 on Mar. 31, 2008, and the above support was delivered to the plaintiff and the defendant on Apr. 16, 2008, "the plaintiff paid 35 million won to the defendant and its amount from Jan. 4, 2003 to the original delivery date of the payment order, and the payment order (the payment order of this case) was delivered to the plaintiff on May 31, 2008, and the plaintiff did not receive the original payment order of this case until May 30, 208.

2. The plaintiff's assertion on the ground of claim

The Plaintiff asserted that “(i) Nonparty 1 Company was obstructed by Nonparty 3, etc. in the course of purchasing a new factory site, and the supply of Nonparty 2 Company to Nonparty 1 Company was unable to properly take place, and there was a need to modify the access road to the new factory of Nonparty 1 Company, which was scheduled to be established in the factory site of Nonparty 2 Company. Accordingly, the Defendant provided 35 million won to Nonparty 1 Company free of charge to resolve the problem of interference with business and the change of access road, and provided 35 million won to Nonparty 1 Company free of charge by depositing 35 million won to the Plaintiff’s passbook. Therefore, the Plaintiff does not bear the obligation to return the principal and interest of KRW 35 million to the Defendant. Therefore, compulsory execution based on the instant payment order under the premise that the Plaintiff was liable for returning the principal and interest of KRW 35 million to the Defendant.”

3. Determination

A. 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 it based on the time limit of res judicata (Article 58(3) of the Civil Execution Act). In the case of a lawsuit of demurrer, it may be deliberated and determined as to all the claims indicated in the payment order. In such a case, the burden of proving the existence or establishment of a claim exists on the part of the obligee, i.e., the defendant in the lawsuit of objection (see Seoul High Court Decisions 2005Na106724, Oct. 11, 2006; 2006Da73966, Jul. 9, 2009).

B. On November 4, 2002, the Defendant deposited KRW 350 million into the Plaintiff’s bank account as seen earlier. Furthermore, as to whether the Defendant loaned KRW 350 million to the Plaintiff, there is evidence No. 8 (Additional Evidence) as evidence that the Defendant appears to correspond thereto. However, the Defendant did not prepare a loan certificate while lending money to the Plaintiff, and did not conclude a separate interest agreement. The Defendant asserted that the date of repayment of the loan was set on January 4, 2003, even before the date of application for the payment order of this case, the Defendant did not demand the return of the loan to the Plaintiff or take measures to preserve rights, such as provisional seizure, etc., for about five years prior to the date of application for the payment order of this case, and that there was no special circumstance that the Plaintiff did not have to borrow money from the Defendant, and there is no evidence to prove otherwise in light of the following.

Rather, in light of the following facts: (a) Nonparty 1: (b) Nonparty 2, who purchased the above-mentioned land number No. 6 through 18 (including each lot number; (c) Nonparty 1’s testimony by Nonparty 4; and (d) Nonparty 1’s inquiry by the court of first instance on the non-party 1; (d) Nonparty 2, who purchased the above-mentioned land number on the non-party 1’s land for the purpose of building a new factory; and (e) Nonparty 2, who purchased the above-mentioned land number of the non-party 1 to the non-party 00 million won for the purpose of building a new factory; and (e) Nonparty 2, who purchased the above-mentioned land number of the non-party 1 to the non-party 6’s access road to the non-party 1 (hereinafter referred to as “non-party 1”; and (e) Nonparty 3, etc., demanded the non-party 1 to provide the non-party 6 with new construction of the access road and to resolve the problem.

Therefore, compulsory execution on the instant payment order under the premise that the Plaintiff was liable for a loan of KRW 35 million to the Defendant should be denied.

4. Conclusion

If so, the plaintiff's claim should be accepted due to the reasons, and the judgment of the first instance is unfair with different conclusions, so it is so decided as per Disposition by accepting the plaintiff's appeal and cancelling the judgment of the first instance court.

Judges Lee Jae-dae (Presiding Judge)