(영문) 서울중앙지방법원 2017.09.15 2016가단60592

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(영문) 서울중앙지방법원 2017.09.15 2016가단60592

추심금

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1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

Reasons

1. Basic facts

A. On September 8, 2011, the Plaintiff filed a lawsuit against Nonparty B with the Seoul Central District Court 201Da17332, and the said court rendered a favorable judgment against the Plaintiff that “The Plaintiff shall pay to the Plaintiff 59,289,532 won and 22,541,262 won with interest rate of 20% per annum from March 3, 2011 to the date of full payment.” The said judgment became final and conclusive around that time.

B. On April 1, 2016, the Plaintiff: (a) obtained a claim attachment and collection order (hereinafter “instant collection order”) with respect to “the claim amounting to KRW 81,707,280,00, out of the amount to be repaid or returned to B with the money borrowed from the debtor, when the Defendant, who is the third party debtor, concluded a lease agreement as to the 1st beauty art room in Geumcheon-gu Seoul Metropolitan Government, as the title of execution of the judgment with executory power in the instant case; (b) on April 1, 2016, the Plaintiff received a claim attachment and collection order (hereinafter “the instant collection order”); and (c) the said order was served on the Defendant on May 3, 2016.

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

2. The plaintiff's assertion and judgment

A. The plaintiff's summary of the plaintiff's assertion is claiming the defendant to pay 81,707,280 won and damages for delay according to the collection order of this case.

B. In a judgment of collection, the existence of the claim subject to collection is a requisite fact and the burden of proof is against the Plaintiff, which is the creditor subject to collection (see, e.g., Supreme Court Decisions 2005Da47175, Jan. 11, 2007; 2013Da40476, Jun. 11, 2015). Considering the existence of the claim subject to collection of the collection order of this case, the evidence submitted by the Plaintiff alone is insufficient to acknowledge that B had the claim subject to the loan of this case against the Defendant at the time of the collection order of this case, and there is no other evidence to prove otherwise.

Therefore, this case against the defendant B.

참조판례

-대법원 2007. 1. 11. 선고 2005다47175 판결

-대법원 2015. 6. 11. 선고 2013다40476 판결

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