[2] The legal nature of a loan for consumption under the Civil Act (=ssatisfy contract) and, in case where one of the parties did not agree to return money or other substitutes to the other party in the same kind, quality and quantity, whether the legal act among them can be a loan for consumption (negative)

[3] In a case where Party A and Party B operated a clothing store by forming a community of economic life with middle school line for about six years, and among them, whether the money transaction by account transfer, etc. would have been expected to be a loan after settlement at the time of settlement of communal living relationship, the case holding that the lower court erred by misapprehending the legal doctrine, even though it is difficult to view that the said monetary transaction was intended to be a loan after settlement at the time of settlement of communal living relationship, and thus, the lower court erred by misapprehending the legal doctrine

[2] A loan for consumption under the Civil Act takes effect when one of the parties agrees to transfer the ownership of money and other substitutes to the other party, and the other party agrees to return such ownership in the same kind, quality, and quantity. Thus, a loan for consumption is not established only when the borrower has to give and receive money, etc. in reality or obtain economic benefits such as the actual acceptance of money. On the contrary, even if one of the parties has actually transferred the ownership of money and other substitutes to the other party, unless the other party has agreed to return money and other substitutes in the same kind, quality, and quantity, it cannot

[3] In a case where Gap and Eul operated a clothing store as well as a community of economic life in middle school for about six years, and the money transaction between them was expected to be a loan after settlement at the time of settlement of communal living relationship, the case holding that the judgment below erred by misapprehending legal principles as to the interpretation of legal act, in light of the period and frequency of remittance between Gap and Eul, the amount of excess, the existence of interest, the existence of a return act, the nature of money transaction in the economic and living community, etc., and it is difficult to view that Gap and Eul proposed to be a loan remaining amount after settlement at the time of settlement of communal living relationship, even though it is difficult to view that the money transaction was planned to be a loan after settlement at the time of settlement of communal living relationship, and thus, the judgment below erred by misapprehending legal principles as

1. Interpretation of a juristic act shall be reasonably interpreted in accordance with logical and empirical rules, and the common sense of society and the transaction norms, by comprehensively taking into account the contents of the language and text, and the motive and circumstances leading up to the juristic act, the purpose and genuine intent to be achieved by the juristic act, transaction practices, etc., in a case where the objective meaning given by the party to the transaction is clearly determined by the language and text indicated by the party concerned (see Supreme Court Decision 91Da35571, May 26, 1992, etc.). In particular, if the content of the contract asserted by the party imposes a serious liability on the other party, it shall be more strict interpretation (see Supreme Court Decision 2000Da33607, Jan. 19, 201, etc.). Such interpretation is not different in the case of implied juristic act by oba.

A loan for consumption under the Civil Act takes effect when one of the parties agrees to transfer the ownership of money and other substitutes to the other party, and the other party agrees to return such ownership in the same kind, quality, and quantity. Thus, a loan for consumption is not established only when the borrower has to receive money, etc. in reality or obtain economic benefits such as the actual acceptance of money, etc. (see Supreme Court Decision 90Da14652 delivered on April 9, 191). On the contrary, even if one of the parties has transferred the ownership of money and other substitutes to the other party in reality, unless the other party has agreed to return money and other substitutes to the other party in the same kind, quality, and quantity, it cannot be deemed a loan

2. A. The lower court dismissed the Plaintiff’s primary claim and accepted the conjunctive claim on the following grounds.

1) During the period from April 2006 to May 2012, when the Plaintiff and the Defendant were close to a middle school post-ship, they were living together with Nonparty 1, who is the Plaintiff’s father, in a community of economic and living, and lived in one house with the Plaintiff’s father, and were living together in the operation of the clothing store. The Plaintiff and the Defendant used money transaction between the Plaintiff and the Defendant by account transfer, etc. over about 160 times from February 11, 2003 to October 11, 2012.

2) From March 29, 1996, the Plaintiff operated the clothing store (hereinafter “○○○○○○○○○○○○○○○○○○○○○○○○ store”). On July 1, 2006, the name of the said store’s business operator was changed to the Defendant, and thereafter, the Nonghyup Bank account (Account Number 1 omitted) and the national bank account account (Account Number 2 omitted) was used in the operation of the said store.

3) In relation to the primary claim, it is found that the Plaintiff and the Defendant made a lease agreement between the Plaintiff and the Defendant on March 8, 2009 on the deposit amount of KRW 70 million for the lease deposit of KRW 70 million for the head of the house and the head of the building ( Address 1 omitted), the lease agreement between August 20, 2009 for the lease deposit of KRW 50 million for the head of the building and the head of the building on August 20, 201, and the lease deposit of KRW 30 million for the head of the building on August 30, 201, Kimcheon-si, Kimcheon-si ( Address 2 and 3 omitted), but the evidence submitted by the Plaintiff alone is insufficient to prove that the Plaintiff paid the Defendant a total of KRW 150 million for each lease deposit or that the Defendant agreed to return it.

4) Preliminary claim, the Plaintiff asserted that on September 25, 2009, the Plaintiff leased KRW 85.5 million to the Defendant, one of whom was refunded KRW 100 million to the Defendant, and that on February 4, 2010, the Plaintiff deposited part of the ○○dong △△△△△△△ store that was transferred to Nonparty 2 (name omitted) and lent it to the Defendant’s account. On the other hand, the Defendant asserts that, even if each of the above amounts was not leased, the Defendant did not lend it, and even if it was leased, the Plaintiff transferred some of the above amounts of △△△△△ branch among ○dong △△△△ branch that was taken over by the Plaintiff to Nonparty 2, and the remainder of △△△△ branch that left after transferring it to Nonparty 2 on or around September 2011, the Plaintiff extinguished its claim for the loan by offsetting the amount of KRW 135 million,5,000,000 and embezzled it to the Plaintiff.

5) In light of the following circumstances, it is reasonable to deem that the ○○-dong store had control over the Plaintiff until it was transferred to Nonparty 2.

A) On June 28, 2006, the Plaintiff prepared a contract for the transfer and acquisition of the above store with the Defendant on June 28, 2006, while operating ○○ Dong △△△○ store. The transfer and acquisition value of the store is set at KRW 44,897,879. However, on January 2010, it is difficult to view that the above transfer and acquisition contract was actually made, in light of the fact that the Plaintiff and Nonparty 2 transferred the △△ sports store to KRW 320 million.

B) In operating ○○ Dong-dong △△△ store, the Plaintiff: (a) on April 3, 1996, registered the establishment of the first-class neighboring mortgage on the land of 137 square meters owned by the Plaintiff’s father and Nonparty 3 as the security for the Plaintiff’s father’s performance of the obligation, including the cost of selling goods to the Plaintiff’s △△△ Korea Co., Ltd.; (b) on December 16, 1998, the registration of the establishment of the first-class neighboring mortgage on the land of 137 square meters owned by the Plaintiff’s father; (c) on December 16, 1998, the registration of the establishment of the establishment of the first-class neighboring neighboring mortgage on the land of 137 square meters; and (d) on December 16, 1998, the registration of the establishment of the establishment of the second-class neighboring neighboring

C) On the other hand, the Defendant, while operating △△dong store, filed a guarantee insurance contract concluded with the Seoul Guarantee Insurance on July 10, 2006, on the part of Nonparty 3 and Nonparty 6, under the joint and several surety of Nonparty 6, on July 15, 2005, on the whole of Non-Party 4 shares in the old city ( Address 1 omitted), where the mother registered the establishment of a mortgage on July 15, 2005 with the maximum debt amount of KRW 100 million, the debtor, Defendant mortgagee, and △△△ Korea Co., Ltd., but the Defendant revoked the registration of the establishment of a mortgage on July 10, 206, immediately after the Plaintiff’s business was transferred to Nonparty 5.

D) As of August 12, 2006, the Defendant prepared a sales contract stating that “○○-dong sales store shall be sold to the Plaintiff for KRW 400 million, but the down payment of KRW 50 million shall be paid at the time of the contract and the remainder of KRW 350 million shall be paid on December 17, 2006,” and issued it to the Plaintiff. On December 27, 2006, the Defendant entered the purchaser as the Plaintiff on the certificate of personal seal impression for real estate sales issued by the Plaintiff and delivered it to the Plaintiff.

E) According to the draft plan on May 29, 2006, which is the internal document of the head office △△ Korea Co., Ltd., the reason for changing the change of the business entity of ○○dong △△△△△△△△△△△, stating that “the name of the Defendant (the actual owner: the Plaintiff) is changed due to various tax issues, such as the Plaintiff’s wage and salary income, business income, etc., of the present owner.”

F) Even after the change of ○○○-dong store in the name of the Defendant, the Plaintiff paid monthly rent to Nonparty 7, the owner of the building, and received such receipts, and the Plaintiff mainly handled remittance business for the head office, payment of value-added tax, and public charges.

G) From around 2002, the ○○dong store was divided into △△ Sports Burial and △△ △△ dedicated store, and was operated. However, around January 2009, when changing the △△ △ dedicated store into the △△ golf store, Nonparty 8, the Plaintiff, and Nonparty 8 paid KRW 20 million each to the head office of △△○ Korea Co., Ltd. for the operation of the said △△ golf store.

H) On January 12, 2009, the Plaintiff borrowed KRW 164,66,610,000 from the Posib Credit Cooperative, and deposited all the remaining amount of KRW 164,66,610, excluding various taxes and public charges, into the national bank account (Account No. 2 omitted) with the Defendant’s name used to operate ○○○○○dong △△△△△△○ store, and used it as the interior cost of △△△ golf store and the operating fund of ○○ Dong △△△△△△

I) On May 24, 2006, the Defendant entered into a contract with the non-party 5, who is the Plaintiff’s partner, to transfer KRW 280 million to the non-party 5,000,000,000,000 from the purchase price, and on June 8, 2006, transferred KRW 230,000,000,000 from the non-party 5 to the non-party 5, and deposited KRW 222,00,000,000,000 out of the deposited checks as checks, and only one copy of the deposited checks was deposited into the Defendant’s Nonghyup Bank account (Account No. 1 omitted) in the Defendant’s name, which was used to operate the store in ○○dong-dong, △△△△△△, and there is no objective evidence to deem that the said money was otherwise paid to the Plaintiff.

6) In light of the fact that the Plaintiff and the Defendant were living in Han-dong and operated a community by using the account in the name of the Defendant in order to operate ○○dong △△ store, and that money transactions had been conducted more than 160 times between the Plaintiff and the Defendant, the Plaintiff and the Defendant did not set the timing or interest rate for the repayment of the loan, or did not prepare the loan certificate, etc., it seems that the Plaintiff and the Defendant have traded money with intent to seek reimbursement of the remaining amount after settling the borrowed amount to each other’s account when the community’s life is completed. According to the evidence submitted by the Plaintiff, it is reasonable to view that the Plaintiff was a loan to the Defendant, and that the Defendant did not have any obligation to pay △△△△△△△△△△△△△△△ KRW 150 million on September 25, 2009 on the part of the Defendant, on the other hand, the Defendant did not have any obligation to set off the above loans to the Defendant.

B. However, in light of the aforementioned legal principles and evidence duly admitted, the court below’s interpretation and determination on the Plaintiff’s conjunctive claim is difficult to accept for the following reasons.

1) First, as seen in the above A-A-5(i), the lower court determined that there was no objective evidence to deem that the Defendant paid money to the Plaintiff, other than a copy of the KRW 10 million check, out of KRW 220 million, which was remitted from Nonparty 5 as part of the transfer price, to the Plaintiff as part of the transfer price. However, according to the statement in the evidence No. 42-1, the Defendant deposited KRW 70 million out of the check amount received from Nonparty 5 on June 9, 2006, into the periodical deposit account in the Osung Mutual Savings Bank in the Plaintiff’s name, and used KRW 140 million in the repayment of the Plaintiff’s loan to the said bank.

In the first instance court and the lower court, the Defendant asserted that the Plaintiff transferred the ○○○dong store to KRW 220 million including the premium, which is not KRW 44,897,879 as indicated in the contract for transfer and acquisition, and paid the price in full from the money for the transfer of △△△△dong store. The above fact accords with the assertion. Furthermore, it is sufficient to view that the Plaintiff and the Defendant received the premium in that the title of the contract prepared between the Defendant and Nonparty 2 on January 2010 regarding the transfer of △△△△○ store is the “contract for the cost of facilities and the premium for the lease of real estate.” On the other hand, at the first instance court and the lower court, the Plaintiff denied the receipt of the money from the Defendant by asserting that the Defendant was replaced with the Defendant, not the actual transfer of ○○○dong store, but only the name of business registration, and thereafter, the Plaintiff did not submit any specific evidence in support of the obligation, even if it received the above KRW 210,000.

2) As seen in the above A. D., the lower court is also based on the determination that the Defendant prepared and delivered a sales contract, etc. that sells ○○dong store to the Plaintiff for KRW 400 million. However, the said contract is a formal form that does not have any content consistent with the actual condition, and is merely a document written with any content different from the substance in order to conceal the substance of the contract.

3) In relation to the above A. 5 (g) and (h), and the evidence duly adopted, as to the building owned by the Defendant on January 13, 2009, around the time when the name of the business operator of the △△ golf store was changed to Nonparty 8, the debtor was Nonparty 8, the maximum debt amount was KRW 50 million, and the mortgagee was registered as the △△ Korea Co., Ltd. on January 12, 2009. In addition, the loan of KRW 180,000,000,000, which was financed from the ○○○○○dong △dong △△○○○○○○○ branch’s artificial expenses, was repaid from Nonparty 2 as the money for transfer. Accordingly, this is consistent with the Defendant’s assertion that the Defendant had the right to control ○○ △dong △△ branch’s distribution, which was transferred to Nonparty 2.

4) In the case of the remaining circumstances cited by the lower court by the lower court, rather than due to the location of control, it is sufficient to view that the actual operation of ○○○○○○ store in the economic and living community of the Plaintiff and the Defendant, unlike the location of control over ○○○○ store, was primarily caused by the Plaintiff.

5) In light of the above circumstances, it is not easy for the lower court to readily conclude that ○○○-dong △△○○○○○○○○○○○○ was the Plaintiff before the transfer to Nonparty 2.

6) If so, it is doubtful whether the ownership of KRW 30 million, which was remitted on February 4, 2010, to the Defendant as part of the transfer proceeds of the above store, can be determined to have been transferred from the Plaintiff to the Defendant as determined by the lower court. Furthermore, in light of the period and frequency of remittance between the Plaintiff and the Defendant, the amount of the excess, whether the interest exists, whether the act of return exists, and the characteristics of money transaction in the economic community, etc., it is questionable whether such monetary remittance between the Plaintiff and the Defendant is deemed to have planned to be a loan after settlement at the time of settlement of community relationship.

C. Although the lower court should closely examine the above circumstances, it concluded that the amount that the Plaintiff remitted to the Defendant was lent to the Defendant, and subsequently accepted the Plaintiff’s conjunctive claim. In so doing, the lower court erred by misapprehending the legal doctrine on the interpretation of a juristic act, thereby failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment. The allegation contained in the grounds of appeal on this point is with merit.

3. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal, the part against the defendant among the judgment below is reversed, and the case is remanded to the court below for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench

Justices Cho Jae-chul (Presiding Justice)