[대여금][공1991.6.1,(897),1344]
The case reversing the judgment of the court below which denied the admissibility of evidence on the ground that there is an incomplete hearing or a violation of the rules of evidence against the rules of evidence, since the plaintiff denied the establishment of the plaintiff's loan certificate and the house sale certificate with respect to the defendant who can be a critical evidence in the defendant's defense for repayment in the loan claim.
The case reversing the judgment of the court below which denied the admissibility of evidence on the ground that there is an incomplete hearing or a violation of the rules of evidence against the rules of evidence, since the plaintiff denied the establishment of the plaintiff's loan certificate and the house sale certificate under the name of the plaintiff which can be a critical evidence against the defendant's defense for repayment, and the testimony of the witness alone is insufficient to recognize
Articles 183 and 187 of the Civil Procedure Act
Attorney Lee Jae-ho et al., Counsel for the defendant
[Defendant-Appellant] Plaintiff 1 and 1 other Defendants
Seoul High Court Decision 90Na15268 delivered on October 26, 1990
1. The part of the judgment of the court below against Defendant Jeong-young shall be reversed, and the case shall be remanded to the Seoul High Court.
2. The defendant's final appeal is dismissed.
The costs of appeal against the dismissed portion shall be assessed against the above defendant.
1. On November 25, 1980, the lower court acknowledged that the Plaintiff and three parties, including the Defendants and the Co-Defendant Hadago, each of the 4,000,000 won interest rate of 2% per month and the due date of payment on December 25, 1980, and determined and lent the interest rate of 4,00,000 won to the Defendants on December 25, 1980. Defendant Jinjin paid the principal and interest of the above loan on June 13, 1982, and Defendant Jinjin paid the principal and interest of the above loan on August 18, 1981. The lower court rejected the Defendants’ defense against the Defendants on the ground that the evidence consistent with the Defendants’ defense was insufficient to believe. In particular, as to the evidence Nos. 2-1, 2, and 3 submitted to the Plaintiff and the Non-Party 1, 2, and there was no other evidence related to the Defendant’s allegation that the above documents were insufficient to prove the Plaintiff’s 1, etc.
2. Judgment on the Defendants’ ground of appeal No. 1 (the part concerning Defendant Jeong-young) by the Defendants’ attorney
(i) According to the records, the Plaintiff’s signature No. 2 and the Plaintiff’s signature No. 1 and No. 2 were recorded on the 40th anniversary of the date of pleadings (190. 24.0), and the Plaintiff’s signature No. 1 and No. 2 were recorded on the 20th anniversary of the Plaintiff’s signature No. 1 and the Plaintiff’s signature No. 30 on the 20th anniversary of the Plaintiff’s signature No. 1 and the 20th anniversary of the Plaintiff’s signature No. 30 on the 20th anniversary of the Plaintiff’s signature No. 1, the Plaintiff’s signature No. 30 on the 1982, Oct. 23, 1982; the Plaintiff’s signature No. 30 on the 20th anniversary of the Plaintiff’s signature No. 90 on the 7th anniversary of the Plaintiff’s signature No. 2; the Plaintiff’s signature No. 30 on the 10th of the 1985.2.
If Eul evidence Nos. 2-1, 2 and 3 were prepared by the plaintiff, and each of the above contents is true, the plaintiff did not borrow money from the above defendant with no repayment of 4,000,000 won or more, and the above defendant's real estate was transferred to the above defendant for the repayment of his obligation, and it cannot be deemed extremely exceptional. Thus, barring any other special circumstance, each of the above evidence can be a critical evidence to acknowledge the counter-performance of the above defendant. Thus, the court below's decision should not reject the witness's testimony as to the formation of the above evidence, and it should be viewed that the plaintiff's testimony as to the above evidence should be found to be unlawful because it was not a 3rd witness's testimony as to the above evidence, and the court below should have the defendant bear an opportunity to establish the above 2nd of the plaintiff's seal imprint as well as a 3rd witness's evidence to prove that the above evidence was similar to the 3rd of the plaintiff's signature.
3. Determination as to the second ground for appeal (the part on Defendant’s late trial).
The judgment of the court below which rejected the evidence consistent with the above defendant's defense for repayment is justified in light of the relation to the evidence as stated by the court below, and it cannot be viewed that there is an error of law of misconception of facts in violation of the rules of evidence without making a proper deliberation like the theory of lawsuit in the court below. In the end, it is nothing more than to criticize the determination of evidence and the recognition of facts belonging to the whole jurisdiction of the court below, and it cannot be accepted.
4. Therefore, the part of the judgment of the court below against Defendant Jeong-young is reversed, and the case is remanded to the court below for a new trial and determination as to this part, and the appeal by Defendant Cho Jae-young is dismissed and the costs of appeal as to this part are assessed against the above defendant as the losing party. It is so decided as per Disposition with the assent of all participating judges.
Justices Yoon Jae-ho (Presiding Justice)