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(영문) 서울고등법원 2017.03.17 2016나3739

대여금

Text

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

Purport of claim and appeal

[Claim]

Reasons

1. Basic facts

A. The conclusion and progress of a partnership agreement (1) around September 2009, the Plaintiff entered into a partnership agreement with the Defendant on the operation of a store with the following content (hereinafter “instant partnership agreement”).

The Plaintiff provides F No. 209 through 214 (hereinafter referred to as the “instant store”) located in G9-dong 2, G9, 214 located in the Republic of Korea when he/she owns or has actual rights.

The Defendant shall take charge of the overall management of the interior and fruit burial of the instant store, and shall bear the interest of KRW 4,200,000 per month on the loans of the leisure No. 750,000,000 established in the instant store.

The profits from the operation of the store of this case shall be distributed at the ratio of the plaintiff 40% and the defendant 60%.

(2) In accordance with the instant trade agreement, the Defendant registered the business relating to over-the-counter retail trade with the name of “H” as its representative on March 5, 2010.

(3) However, the instant store was closed leaflets due to disputes between the Si office and the Si office around March 2010. On September 14, 2010, the Defendant was actually unable to operate the instant store on the grounds of fire, etc. for which the cause of the instant store could not be known.

(4) The Defendant, upon the occurrence of a fire after the said fire, was in conflict with the Plaintiff, suspended the payment of the amount equivalent to the interest on the loans of the instant store by August 2010 according to the instant trade agreement.

(5) As the Plaintiff did not pay interest on the loans to the instant store, the Plaintiff, the creditor, filed an application for a voluntary auction on the instant store. Of them, Nos. 209 and 210 were sold to the Defendant around April 2012.

B. Meanwhile, the Plaintiff brought a lawsuit against the Defendant (1) on the other hand, from October 11, 2009 to September 27, 2010, and the Plaintiff transferred or paid to the Defendant a total of KRW 806,60,000 (hereinafter “instant payment”) on 39 occasions as shown in the attached Table, as shown in the attached Table.

(2) On January 12, 201, the Plaintiff against the Defendant.