[대여미청구사건][고집1978민,184]
The object of a loan for consumption, where money equivalent to the market price is actually granted while lending a margin;
In a case where 80 Gamas are actually paid in accordance with the market price at the time when 80 Gamas are to be lent, the object of the loan for consumption is white and the provisions of the Interest Limitation Act are not applied.
Articles 598, 606, and 607 of the Civil Act
Plaintiff
Defendant
Daejeon District Court of the first instance (77Gahap144 decided May 1, 200)
The original judgment shall be modified as follows:
The defendant shall pay to the plaintiff 104 104 Gama (145 Gamama) and 80 Gama at the rate of 36% per annum from December 31, 1973 to the full payment.
If compulsory execution against the above margin is impossible, the payment will be made by converting the amount of 24,000 won per 1 marate.
The defendant's remaining appeal is dismissed.
All the costs of lawsuit shall be borne by the defendant in the first and second instances.
The defendant shall pay to the plaintiff 104 Gama (145 Gamamas) and the amount calculated by the ratio of 36% per annum from December 31, 1973 to the full payment.
If it is impossible to enforce the compulsory execution against the above00s, the payment shall be paid in 24,000 won per 1 math.
Litigation costs shall be borne by the defendant.
The original judgment shall be revoked.
The plaintiff's claim is dismissed.
All the costs of lawsuit shall be borne by the plaintiff in the first and second instances.
In full view of the statements in Gap evidence Nos. 1 and 3-4 and non-party 1's testimony, which are not disputed in the formation, the plaintiff extended 80 Gams (145 Gams, hereinafter the same shall apply) to the defendant around May 25, 1973, and paid 750,000 won which can live in 80 Gams according to the market price at the time. The date of return shall be 2.30 Gams, and the interest accrued until the date of return shall be 24 Gams with a sum of 104 Gams and interest accrued on the date of return, and the above date of return shall be 104 Gams and 104 Gams, when the above date of return is Do, the plaintiff cannot be found to be contrary to the agreement between the defendant and the non-party 25 Gams and the non-party 1's testimony.
According to the above recognition, the defendant is obligated to return to the plaintiff the delayed damage amounting to 30% per annum from December 31, 1973 to 30% per annum on the day following the date of return of the original rice and the above 24,000 won per annum from December 31, 1973 to the date of full payment. Since there is no dispute between the parties, the amount of 24,000 won per annum is to be paid to the plaintiff, if compulsory execution against the above 100 won is impossible, the plaintiff's claim shall be justified within the extent of the above recognition, and the remaining amount shall be dismissed. Since the original judgment is partially unfair, it shall be modified as above, and it shall be applied Articles 96, 89, and 92 of the Civil Procedure Act with respect to the bearing of litigation costs as above.
Judges Jeon Soo-hee (Presiding Judge)