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1. Revocation of the first instance judgment.
2. The plaintiff's claim is dismissed.
3. All costs of the lawsuit shall be borne by the Plaintiff.
Reasons
1. The Plaintiff asserted that the Plaintiff received the claim attachment and collection order from the Daegu District Court Branch Branch of the Daegu District Court Branch Branch of 2016Gu2311 regarding KRW 71,220,683 among the claim for construction price against the Defendant, based on the executory exemplification of the payment order in the case of construction cost, which was executed by KS Construction against the Defendant. Since the above claim attachment and collection order were served on the Defendant, the Defendant is liable to pay the Plaintiff the amount of KRW 71,220,683 and the delay damages therefrom.
2. Determination
A. Comprehensively taking account of the purport of evidence evidence Nos. 1, 2, and 3 as well as the overall arguments in this court, ① the Plaintiff applied for a payment order of KRW 69,500,000 for the payment of the construction cost against the construction of KS on December 23, 2016 and for the payment order of KRW 20,50,000 for the payment of the construction cost and delayed damages therefor on January 3, 2017, and the payment order became final and conclusive around that time. ② After the Plaintiff received the payment order of the Daegu District Court Branch Branch of KS construction 2016,231, based on the payment order with executive force for the construction cost case No. 2011, Feb. 24, 2017; and ② the Plaintiff received the payment order of KRW 71,220,683 from the Defendant on the basis of the payment order with executive force for the construction cost case No. 2017, Mar. 24, 2017>
B. However, in a claim for collection, the existence of a claim subject to seizure is a requisite fact and the burden of proof exists on the Plaintiff (see, e.g., Supreme Court Decision 2013Da40476, Jun. 11, 2015). The evidence submitted by the Plaintiff alone is insufficient to acknowledge that there existed a claim for the construction price payable to the Defendant of KS Construction at the time of serving a collection order, and there is no other evidence to acknowledge it.
(c) arguments in evidence Nos. 1, 2, 3, 4, 5, 6 (including each number).