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(영문) 서울중앙지방법원 2014.08.14 2013가단61396

시설물인도

Text

1. The instant lawsuit shall be dismissed.

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

Reasons

1. The Plaintiff’s assertion entered into a sales contract with C on January 10, 2013 with respect to each of the goods listed in the separate sheet (hereinafter “instant goods”) and paid KRW 20 million on January 11, 2013.

The Defendant without any title occupies the instant goods owned by C without any title.

The Plaintiff’s exercise the right to claim the delivery of the instant goods against C as the preserved claim against C, thereby exercising the right to claim the delivery of the instant goods against C and the right to claim the return of unjust enrichment equivalent to the rent.

2. Comprehensively taking account of the overall purport of the pleadings as to the existence of a preserved claim(s) No. 1-1, 2, and 2 as to the existence of a preserved claim (the lawfulness of the instant lawsuit), the Plaintiff and C, around January 10, 2013, prepared a sales contract with the purchase price of KRW 20 million for the instant goods; the Plaintiff remitted KRW 20 million to the account of C on January 11, 2013; and the Plaintiff paid KRW 1,369,720 on February 1, 2013 on the ground that the Plaintiff acquired the instant goods.

Meanwhile, in full view of the purport of evidence No. 10-4, the Plaintiff transferred the above KRW 20 million to C Co., Ltd. on January 11, 2013 by dividing the above KRW 8 million, KRW 7 million, and KRW 5 million, following the remittance of each of the above amounts, the Plaintiff received the same amount from D (the representative of C at the time of transfer) and deposited it into the Plaintiff’s account.

In addition, the Plaintiff asserted that D had a loan of KRW 270 million, but the Plaintiff acquired the instant goods due to the above credit relationship, and paid KRW 20 million separate from the above loan (at least, the purport of the note is unclear, but the total purchase price of the instant goods is KRW 290 million). However, the above sales contract was concluded on June 7, 2013 (the Plaintiff’s preparatory document dated June 7, 2013).