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(영문) 서울고등법원 2015.09.16 2015나2000555

대여금

Text

1. The plaintiff's appeal is dismissed.

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

The purport of the claim and appeal is the purport of the appeal.

Reasons

1. The reasoning of the court’s explanation of this case is as stated in the reasoning of the judgment of the first instance except for the addition of the judgment of the plaintiff to the new argument at the trial as set forth in paragraph (2). Thus, the court shall accept it pursuant to the main sentence of Article 420 of the Civil Procedure Act.

2. The Plaintiff asserts that, even if the loan agreement for consumption under the instant loan certificate was invalid as it constitutes a false representation in collusion, the Plaintiff, as the representative of the Defendant, prepared an Scro agreement on April 28, 2013 (Evidence 2) with the power of representation in relation to the share and management right acquisition agreement, and agreed to return 200 million won paid to D with the Plaintiff’s funds, and thereafter, C, the representative of the Defendant, prepared the instant loan certificate in the name of the Defendant and expressed his/her intent to assume obligations ex post facto as to the said agreement, and thus, the Defendant is obligated to return 200 million won to the Plaintiff.

However, in full view of the following circumstances, the evidence Nos. 1-1, 2-3 and the testimony of the witness of the first instance trial, which are acknowledged as being comprehensively taken into account the overall purport of the pleadings, namely, ① the defendant’s representative at the time of the preparation of the above Scro agreement or the loan certificate of this case, is not C, but I, and ② it is difficult to deem that the agreement by the defendant to return 200 million won to the plaintiff is included in the Scro agreement, as alleged by the plaintiff, as alleged by the plaintiff, and ③ as seen earlier, insofar as the loan certificate of this case was prepared formally in order to create an expenditure data about 200 million won of the plaintiff’s funds, it cannot be deemed that the defendant expressed an intent to bear any obligation through the preparation and delivery of the loan certificate of this case.