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1. The loan case against the defendant is based on the payment order dated December 13, 2006, the Suwon District Court 2006 tea 18391 against the plaintiff.
Reasons
1. Basic facts
A. On December 11, 2006, the Defendant filed an application with C Co., Ltd. (hereinafter “C”) and the Plaintiff for a payment order claiming the payment of the loan of KRW 50 million and delay damages (the repayment order was issued on December 13, 2006, and the payment order was finalized on January 3, 2007 for C, and the payment order was finalized on January 3, 2007 for the Plaintiff.
(hereinafter “instant payment order”). B.
At the time of the instant payment order, the Defendant asserted as the cause of claim that “the Defendant lent a total of KRW 50 million over several times at C’s request, and thereafter, C urged to repay the loan, and the Plaintiff promised to repay the loan jointly and severally with C.”
C. On December 30, 2015, the Defendant: (a) received a seizure and collection order of the deposit claim held by the Plaintiff against the financial institution, such as Korea Bank, with the title of execution of the instant payment order; and (b) collected KRW 10 million of the deposit claim against the Plaintiff’s bank on December 30, 2015.
[Ground of recognition] Unsatisfy, Gap evidence Nos. 1-5, the purport of the whole pleadings
2. In cases of a final and conclusive payment order with respect to the portion of claim objection, the grounds for failure, invalidation, etc. which occurred before the issuance of the payment order may be asserted in a lawsuit of objection against the payment order with respect to the claim which became the cause of claim for the payment order.
(See Articles 58(3) and 44(2) of the Civil Execution Act. Meanwhile, in the event that the plaintiff asserts that his claim was not constituted by the defendant in a lawsuit of demurrer against the established payment order, the plaintiff is liable to prove the cause of the claim to the defendant, and where the plaintiff asserts that his claim constitutes a cause of disability or extinction of the right, such as the invalidity of false indication or extinguishment of the claim due to repayment, the plaintiff is liable.