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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. The Plaintiff and the Defendant (formerly: C; hereinafter “Defendant”) continue to maintain the relationship between the Plaintiff and the Defendant from time to time by borrowing money from the Defendant and repaying the money to the Defendant.
B. On December 30, 2013, the Plaintiff and the Defendant drafted a notarial deed with the following content as a notary public’s No. 632 at the 2013 No. 632 of the 2013 General Law Office.
(hereinafter “notarial deed of this case”). Article 1 (Purpose) The creditor lent KRW 135,00,000 to the debtor on December 30, 2013, and the debtor borrowed it.
Article 2 (Period and Method of Performance) 50,000,000 won on February 28, 2015 and 85,00,000 won on December 31, 2016, respectively.
Article 9 (Recognition of Compulsory Execution) When an obligor fails to perform a pecuniary obligation under this contract, the obligor recognized the absence of objection immediately even if compulsory execution has been enforced.
[Ground of recognition] The fact that there is no dispute, Gap's evidence No. 1, and the purport of whole pleading
2. The defendant's judgment on the main defense of this case constitutes an execution title as a condition for compulsory execution acceptance, and thus, the plaintiff's filing of a lawsuit seeking confirmation on the existence of the obligation on the Notarial Deed as in this case without resorting to a claim objection lawsuit as in this case is unlawful as there is no benefit of confirmation. Thus, in a case where a lawsuit seeking confirmation on the existence of the obligation on the Notarial Deed is filed without filing a lawsuit for objection to a claim, and as to the obligation which is the cause of the preparation of the Notarial Deed, a lawsuit seeking confirmation on the existence of the obligation is not unlawful as there is no benefit of confirmation (see, e.g., Supreme Court Decision 2012Da10863, May 9, 2013). As seen thereafter, as seen in the following, the plaintiff in this case exceeds the amount borrowed from the defendant, and thus, the plaintiff is more than the amount repaid by the defendant.