[대금청구사건][고집1967민,318]
Whether a loan for consumption can be seen as a loan for consumption even for the portion which was deducted as prior interest in a loan for consumption and has not been actually received (affirmative)
Since the borrower gains the same economic benefit as that of the receipt of the money in reality even for the portion which has been deducted as prior interest, the loan contract for consumption is concluded even for the deducted amount under the Korean Civil Code, which does not recognize the nature of the loan for consumption, since the borrower gains the same economic benefit as that of the receipt of money in reality.
Article 598 of the Civil Act
65Da2337 decided Jan. 25, 1966 (Supreme Court Decision 1495, Supreme Court Decision 598(4)470 decided Jan. 25, 196)
Plaintiff
Defendant
Seoul Central District Court (66A12790) of the first instance court
(1) The part of the original judgment against the plaintiff shall be revoked.
(2) The defendant shall pay to the plaintiff 50,000 won with 20,000 won with 30,000 won from November 21, 1965 to 30,000 won with 20% interest per annum from November 23, 1965 to each full payment day.
(3) The defendant's appeal is dismissed.
(4) All the costs of lawsuit are assessed against the defendant in the first and second trials.
(5) The judgment can be provisionally executed on the part of winning the plaintiff (1 and 2).
The defendant shall pay to the plaintiff 20 million won with 100,000 won and 100,000 won from November 21, 1965 to the date of full payment. As to the remaining 100,000 won, the defendant shall pay to the plaintiff 200,000 won with 20% interest per annum from the 23th of the same year to the date of full payment.
The judgment that the lawsuit costs should be borne by the defendant and the declaration of provisional execution were sought.
(1) The Plaintiff’s attorney sought a declaration of judgment and provisional execution as above.
(2) The defendant shall revoke the part against the defendant among the original judgment.
The plaintiff's claim is dismissed. The judgment of the court of first and second instances that the plaintiff's claim should be borne by the plaintiff.
(1) If Non-party 1 and 2's testimony of the court below, non-party 1 and 2, and Non-party 3's testimony of the court below and the trial witness, the defendant's agent was delegated by the defendant on August 20, 1965, and Non-party 3 agreed from the plaintiff on September 20 of the same year as the payment date of interest on the loan of 1,00,000 won from the plaintiff on August 20, 1965, the non-party 3 received 93,00 won remaining after deducting 7,00 won as the advance interest rate of the above amount under the agreed interest rate between the above amount, without any objection, and again borrowed 1,00,000 won from the plaintiff on September 22, 1965, the non-party 3, who is the defendant's agent, obtained 1,00,000 won from the plaintiff on September 22, 1965, the payment date and 10.
In the above recognition facts, as to the above loan for consumption which is deducted as interest in advance and which has no actual amount of money, the borrower has the same economic interest as the actual amount of money was paid in the loan for consumption (i.e., the borrower has economic interest such as the repayment of interest in the loan as part of the loan principal).
As to the establishment of a loan for consumption, our civil law (Article 598 of the Civil Code) that does not recognize the nature of the contract as to the establishment of the loan for consumption, the loan contract for consumption should be deemed to have been concluded
Therefore, the plaintiff's principal claim is reasonable, since the non-party 3, who is the defendant's representative, is 200,000 won in Do, and the defendant is obligated to pay 11.21 to 10,000 won in Do and 100,000 won in Do as well as 11.21 to 10,000 won in Do, from November 23, 1965 to 10,000 after the date of payment, and 20 percent in Do as requested by the plaintiff. Thus, the plaintiff's principal claim is reasonable. Since the part against the plaintiff in the original judgment that differs from this opinion is unfair, the part against the plaintiff is revoked pursuant to Article 386 of the Civil Procedure Act and the plaintiff's appeal is dismissed pursuant to Article 284 of the same Act, and the defendant's appeal is dismissed pursuant to the same Act with respect to the burden of litigation expenses, and with respect to the declaration of provisional execution, Article 199 (1) of the same Act.
Judges Kim Byung-su (Presiding Judge)