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(영문) 인천지방법원 2017.04.19 2016나11929

대여금

Text

1. The judgment of the court of first instance is modified as follows.

To the extent of the property inherited to the network H, the Plaintiff shall be within the scope of the property.

Reasons

1. Facts of recognition;

A. On April 11, 2011, the Plaintiff leased KRW 70 million to the deceased H (Death, February 20, 2014) on June 10, 2011, with the due date set as the maturity of reimbursement. As a security, the Plaintiff set up a collateral security right with the maximum debt amount of KRW 84 million on the G and F land owned by the network H (hereinafter “instant land”). The Plaintiff set up a maximum debt amount of KRW 84 million, the debtor’s network H and the mortgagee as the Plaintiff.

B. On June 15, 201, the network H and I concluded a sales contract for the instant land and transferred its ownership under the name I, and the said collateral security was changed to I by the secured debtor.

C. On December 1, 2011, the instant land was sold to J on July 25, 2012 upon the Plaintiff’s application for voluntary auction based on the Plaintiff’s right to collateral security.

Dividends received by the plaintiff due to auction are 39,165,230 won.

The defendant is the spouse of the network H, and the designated parties are children of the network H.

[Reasons for Recognition] Facts without dispute, Gap evidence Nos. 1, 2, 3, Eul evidence Nos. 1, 3, 4, and 5 (including branch numbers), the purport of the whole pleadings

2. Determination

A. According to the fact of finding the cause of the claim, the Defendant and the designated parties are obligated to pay to the Plaintiff KRW 30,834,770, out of the amount borrowed by the deceased H, unless there are special circumstances.

B. As to the Defendant’s claim of acceptance of contract or exemption from liability, the Defendant asserts to the effect that, in the process of transferring the instant land to the networkI and changing the name of the secured debtor of the right to collateral security into I, the Plaintiff was released from the contractual relationship through acceptance of the contract, or I was exempted from the Plaintiff’s obligation, and thereafter, the network H did not have any obligation to the Plaintiff.

In fact, as seen earlier, the fact that the deceased H traded the instant land to the I on June 15, 201 is recognized, and the fact that the secured debtor of the right to collateral security established on the instant land has changed to I on the ground of the acceptance of the contract.

(b).