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(영문) 서울중앙지방법원 2016.11.30 2016가단114062

대여금

Text

1. The instant lawsuit shall be dismissed.

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

Reasons

1. Determination as to the cause of claim

A. On January 28, 2008, the Plaintiff leased KRW 30,000,000 to the Defendant on February 30, 2008, with the due date set as February 30, 2008.

(hereinafter “instant loan”). 【Ground for recognition” (In the absence of dispute, entry of A evidence No. 1, and purport of the entire pleadings】

B. According to the above facts of recognition, the defendant is obligated to pay the loan of this case and damages for delay to the plaintiff, unless there are special circumstances.

2. Judgment on the defendant's defense

A. The Defendant, inasmuch as he/she received bankruptcy decision or immunity decision, raises a defense that the instant claim is unlawful.

According to the evidence evidence Nos. 1 through 3, the defendant filed a bankruptcy and application for immunity with the Incheon District Court on August 5, 2015 (In Incheon District Court Decision 2015Hadan4109 and 2015Ma4114), the bankruptcy was declared on November 12, 2015, and the decision to grant immunity was issued on February 2, 2016, and the decision to grant immunity became final and conclusive on February 27, 2016.

If a decision to grant a discharge to a bankrupt becomes final and conclusive, the bankrupt’s obligation is natural obligation and the ability and executory power of the suit is lost, and the suit in this case is unlawful as there is no benefit of protection of rights.

B. The Plaintiff asserts that the Defendant is not exempt from liability since the Defendant did not enter the instant loan claim in the creditor list in bad faith.

According to the evidence No. 3, it can be acknowledged that the defendant did not enter the loan claims of this case in the creditor list while filing a petition for bankruptcy.

However, there is no evidence to prove that the Plaintiff had urged the Defendant to pay the debt between the parties after the lapse of seven years from the date of the occurrence of the instant loan, and there is no evidence to prove that the Plaintiff had urged the Defendant to pay the debt. The Defendant asserted that the actual borrower of the instant loan is C, who is the husband of the Defendant, and the Defendant merely signed the loan certificate, was also lent KRW 30,000,000 by the introduction of the Defendant’s husband, and