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1. The Defendant’s decision on recommendations for the execution of the loan case, Seoul Central District Court 2012Gaso738631, as to the Plaintiff.
Reasons
1. The Defendant asserts that on October 31, 2006 between the Plaintiff and the Jeju Mutual Savings Bank (hereinafter “instant loan agreement”), the Defendant received a claim based on the loan agreement between the Plaintiff and the Jeju Mutual Savings Bank (hereinafter “instant loan agreement”), and filed a lawsuit against the Plaintiff that “the Plaintiff shall pay to the Defendant 7,496,064 won and its 3,299,985 won with interest of 20% per annum from January 13, 2012 to the date of full payment,” and the said court did not conflict between the parties that the said decision on performance recommendation became final and conclusive.
2. Determination
A. The plaintiff asserts that since the plaintiff did not conclude the loan contract of this case and Eul concluded the loan contract by misappropriation of the plaintiff's name, compulsory execution based on the above decision of performance recommendation should be rejected.
In this regard, the defendant asserts that the loan contract of this case was lawfully concluded by the plaintiff, and that even if the plaintiff did not prepare a direct loan application, he shall be held liable as the nominal lender because he lent the name of the loan to B.
B. As the decision on performance recommendation does not take place even after the final and conclusive decision has become final and conclusive, the restriction is not applied to a lawsuit of demurrer pursuant to the time limit of res judicata. Therefore, in the hearing of the relevant lawsuit, the determination of performance recommendation may be made on all the claims indicated in the decision on performance recommendation. In this case, the burden of proof for the existence or establishment of the claim lies on the defendant in the lawsuit of objection.
Of the instant loan application form (No. 2-1), the part against the Plaintiff in the instant loan application form (No. 2-1) cannot be admitted as evidence because the authenticity cannot be recognized, and there is no other evidence to prove the fact that the Plaintiff concluded the instant loan contract.
In addition, there is no evidence to acknowledge that the plaintiff allowed B to lend money in its own name.