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(영문) 의정부지방법원 고양지원 2016. 11. 16. 선고 2015가단93187 판결

보상과 관련한 지장물에 대한 피고들에 대하여 위 각 공탁금출급청구권의 확인을 구할 이익이 있는지 여부[국승]

Title

Whether there is any benefit in seeking confirmation of the above claim for payment of each deposit against the Defendants for an obstacle related to compensation.

Summary

It is reasonable to deem that there is no right of the Republic of Korea in relation to the compensation. Since the Defendants are the persons to whom the above deposits are deposited, the Plaintiff has the interest to seek confirmation of the right to claim the above payment of deposit money against the Defendants.

Related statutes

Civil Procedure Act

Cases

2015da93187 Action to confirm the right to claim the withdrawal of deposits.

Plaintiff

AAAA Corporation

Defendant

Korea

Conclusion of Pleadings

October 05, 2016

Imposition of Judgment

November 16, 2016

Text

1. The defendant Dong-A, ParkA, and Dong-A confirm that the Government District Court of the District Court of the District Court of the District Court of the District Court of the District on August 17, 2015, the Government of the District Court of the District Court of the District Court of the District Court of the District Court of 31,519,000 won deposited by the District Court No. 3097 on August 17, 2015, the plaintiff

2. On April 17, 2015, the defendant Dong-A, ParkA, Gu-A, and Gu-owned State confirm that the Government District Court of the District Court of the District Court of the District Court of the District Court of the District Court of the District Court of the District Court of the District Court of the District Court of the District Court of the District Court of the District Court of the Republic of Korea of 1,687,660 won, out of KRW 4,07,00,00, was the plaintiff.

3. The costs of lawsuit shall be borne by the Defendants.

Cheong-gu Office

The same shall apply to the order.

Reasons

1. Basic facts

A. At the office of a corporate bond manager using the trade name of “AAA” as an agent of the Plaintiff’s representative, KimA, the agent of the Plaintiff’s representative, made each of the following written applications for loans made on May 14, 2012 and the letter of credit transaction made on May 15, 2012, with the creditor’s official intention in accordance with the guidance of the branch bank as an employee of the corporate bond manager:

○ The loan amount of KRW 500,00,000 per annum, interest rate of KRW 30% per annum, interest rate of arrears, 38.4% per annum, debtor LA, Plaintiff, KimA (Evidence A 4 1, 4)

○ The loan amount of KRW 50,00,000, interest rate of KRW 30% per annum, interest rate of arrears, 38.4% per annum, debtor’s premium rate, KimA, joint and several sureties (Evidence A 4-2, 3)

B. “A” and “A” state on May 14, 2012 a receipt (Evidence A 4-5), with a face value of KRW 550,000,000, and a promissory note (Evidence A-6-6), with a face value of KRW 825,00,000, without having received a loan on May 14, 2012, stating that the said receipt and promissory note are valid at the time of deposit.

C. On May 15, 2012, AA’s side deposited KRW 59,405,039, and KRW 50,000,00 in the name of the Defendant A and AA’s passbook in the head of the Tong on May 15, 2012, respectively, and LA again remitted KRW 40,168,00 to the part of AA on the same day.

D. On June 11, 2012, a notary public made a notarial deed under the monetary loan agreement (No. 2; hereinafter referred to as the "notarial deed in this case") No. 1899, which was made by Defendant Dong-A, the debtor, the Plaintiff, the Plaintiff, and the KimA on June 11, 2012, with the commission of 1st of literature A, stating that the notarial deed in this case was an agent of the creditor, debtor, etc., and the notarial deed in this case stated that the Plaintiff, DA, and KimA borrowed KRW 360,000,000 from Defendant Dong-A on May 15, 2012.

E. On August 6, 2012, AAA made notification to the Korea Land and Housing Corporation on the Plaintiff’s credit to be granted from the Korea Land and Housing Corporation under the name of Defendant DongA, ParkA, and Land and Housing Corporation (all compensation for the implementation of the housing site development project conducted in relation to the project for the development of a housing site in which the failure to implement the project) was transferred to Defendant DongA, ParkA, and Land and Housing Corporation, and the said notification was served to the Korea Land and Housing Corporation on August 7, 2012.

F. On December 18, 2012, the AAA Housing Corporation, the Plaintiff, and the AAA’s side agreed that KRW 31,200,000 out of the above compensation shall be paid to the Defendant A, and KRW 300,000,000 shall be paid to the Defendant A, respectively, and on July 8, 2015, there is no money to be paid to Defendant A.

G. On August 17, 2015, the AAAAA Housing Corporation made a mixed deposit of KRW 31,519,000 for the adjudication on the business rights related to the said compensation under the District Court Decision 3097, J. 17, 2015, using the Plaintiff, the Defendant DongA, ParkA, ParkA, and Land AA as the principal deposit. Moreover, the AAAAA Housing Corporation made a mixed deposit of KRW 4,070,00 for the adjudication on the obstacles related to the said compensation under the District Court Decision 238,340,340 for the amount in arrears held by the Republic of Korea against the Plaintiff at the time of the combination under the District Court Decision 1293, Apr. 17, 2015, with the District Court Decision 2015, the District Court Decision 4,070,000 for the foregoing obstacles as the principal deposit.

2. Determination as to the cause of action

According to the above facts, according to each of the above agreements, the rights of the defendant's Republic of Korea to be paid from the adjudication compensation of 31,519,000 won for business rights related to the above compensation and from the adjudication compensation of 4,070,000 won for obstacles related to the above compensation have expired, and the rights of the defendant's Republic of Korea to be paid from the adjudication compensation of 4,687,660 won for obstacles related to the above compensation (=4,070,000 won - 2,382,340 won), shall not exist. Since the defendants are the persons to whom the above deposits are deposited, the plaintiff shall have the interest to seek confirmation of the claim for payment of each of the above deposits against the defendants.

Therefore, Defendant Dong-A, ParkA, and Dong-A are obligated to verify that the Government District Court of the District Court of the District Court of the District Court of the Republic of Korea deposited the amount of KRW 31,519,000 on August 17, 2015, Defendant Dong-A, ParkA, the District Court of the Republic of Korea, and the Korea Land and Housing Corporation deposited the amount of KRW 31,519,00 in gold No. 3097 on August 17, 2015, Defendant Dong-A, ParkA, the District Court of the District Court of the District Court of the District Court of the District Court of the District Court of the Republic of Korea on April 17, 2015, the Republic of Korea has the obligation to verify that the right to claim for deposit payment of KRW 1,687,660 out of the amount of KRW 4,07,00 deposited by

3. Determination as to Defendant DongA’s assertion

A. Defendant A asserts to the effect that it shall be dismissed because it merely conferred the power of representation on the collection of the Plaintiff’s debt to the Defendant, and it did not delegate the authority to agree that the Plaintiff’s debt to the Defendant. However, the above facts of recognition and the following circumstances acknowledged by Eul’s entry of evidence and the overall purport of pleading, i.e., a person who carries out all of the above loan-related operations between the Plaintiff and the Plaintiff, is DoA as an employee of the AA, and a receipt (Evidence No. 4-5) and a promissory note (Evidence No. 4-6) are valid at the time of deposit of each account, and it appears that Defendant A would not have made a statement on the above money deposited in the account of the Plaintiff’s account (as seen in the above, it appears that Defendant A’s money deposited in the name of the Dong and ParkA, but this appears to have been issued to Defendant A’s maximum amount of money deposited in the Plaintiff’s account (as stated in the foregoing, it appears that Defendant 201 and Defendant 25A appears to have not been issued any limit to the above Defendant A.201.

B. In addition, Defendant Dong-A asserts to the effect that there is no interest in confirmation of the instant lawsuit against Defendant Dong-A because the seeking confirmation of each of the above claims for payment of deposit money alone cannot be ruled out. However, as seen earlier, there is a benefit in confirmation of the instant lawsuit, it is not only a lawsuit seeking confirmation that each of the above claims against Defendant Dong-A is the Plaintiff, but also a lawsuit seeking exclusion of the executory power of the instant notarial deed (in addition, Defendant Dong-A or Dong-A lent KRW 360,000,000 to Plaintiff, Do-A on May 15, 2012, it is not clearly inconsistent with the language and text of the instant notarial deed, and there is no objective assertion that Plaintiff, Do-A, and Do-A stated that each of the above claims for payment of deposit money was valid in a receipt and promissory note on May 15, 2012, and that there is no objective evidence that Defendant Dong-A stated that it was an executory power of the instant notarial deed.

3. Conclusion

Thus, the plaintiff's claim against the defendants is justified, and all of them shall be accepted.

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