A. Nonparty 1 (the Nonparty in the judgment of the Supreme Court) confirmed that on September 3, 2010, the right to claim for deposit withdrawal of KRW 30,000,000 deposited by the Seoul Central District Court No. 17109 on September 3, 2010 was against the Plaintiff (Counterclaim Defendant).

B. The Defendant (Counterclaim Plaintiff) shall pay to the Plaintiff (Counterclaim Defendant) 20% interest per annum on KRW 5,003,782 and KRW 3,862,90 among them at the rate of 20% interest per annum from July 5, 201 to the date of full payment.

C. The plaintiff (Counterclaim defendant)'s remaining claims against the plaintiff (Counterclaim plaintiff) are dismissed.

2. The total cost of the lawsuit between the Plaintiff (Counterclaim Defendant) and the Defendant (Counterclaim Plaintiff) shall be borne, respectively, by the Plaintiff (Counterclaim Defendant) and the remainder (Counterclaim Plaintiff).

3. The above paragraph 1(b) may be provisionally executed.

A. Main Action: (a) On September 3, 2010, Nonparty 1’s right to claim a withdrawal of KRW 30,000,000 deposited by the Seoul Central District Court No. 17109, the Defendant (Counterclaim Plaintiff; hereinafter “Defendant”) confirms that Nonparty 1 is the Plaintiff (Counterclaim Defendant; hereinafter “Plaintiff”). The Defendant (Counterclaim Plaintiff; hereinafter “Defendant”) pays to the Plaintiff 38,175,865 won and the amount calculated by the rate of 20% per annum from the day following the day on which the copy of the application for modification of the purport of this case is served to the day of complete payment.

B. Counterclaim: The plaintiff and the defendant confirm that the assignment of claims entered into on January 17, 2005 is null and void.

2. Purport of appeal

The part of the judgment of the court of first instance against the defendant in excess of the following part of the main lawsuit against the defendant shall be revoked, and all the plaintiff's claims against the defendant corresponding to the revoked part shall be dismissed. On September 3, 2010, the plaintiff's claims against the defendant shall be confirmed to be the plaintiff as to the 14,100,000 won out of the deposit money deposited by the Seoul Central District Court No. 17109 on September 3, 2010 as 30,000 won.

In the first instance trial, the Plaintiff and the Defendant jointly accused Korea Housing Finance Corporation in the first instance trial filed a principal lawsuit by combining the claims against the Defendant for the confirmation of the right to deposit payments, the Defendant filed a counterclaim against the Defendant for the confirmation of the right to deposit payments, and the Defendant filed a claim for the confirmation of the right to deposit payments out of the claims for the confirmation of the invalidity of an assignment of claims. The claims for the confirmation of the right to deposit payments out of the principal lawsuit were fully accepted, and the counterclaim was partially dismissed, and only the Defendant only appealed against the principal lawsuit. Thus, the scope of the judgment of this

2. Basic facts

A. On December 29, 2004, the Defendant leased the lease deposit amount of KRW 30,000,000 from Nonparty 1 to December 28, 2006, and paid KRW 30,000,000 to Nonparty 1 around that time.

B. On January 17, 2005, the Defendant borrowed KRW 10,000,000 from the Plaintiff, a credit service provider, and entered into the following loan agreements (hereinafter “instant loan agreements”), and received KRW 8,700,000 from the Plaintiff, deducting KRW 300,000,000 from the Plaintiff’s prior interest, KRW 50,000,000, and KRW 500,000 from the financial brokerage fee under Article 15 of the instant loan agreement. Meanwhile, the Plaintiff paid KRW 50,00 to Nonparty 2, a broker on the same day.

1. In borrowing the above loan from the obligee, the borrower (hereinafter referred to as the “debtor”) shall not only transfer to the obligee the right to claim for the return of the lease deposit against the lessor for the purpose of securing the lessee’s obligation at present or in the future (hereinafter referred to as the “creditor”), but also transfer the right to lease to the obligee so that the obligee may directly order the lessor when the obligee wishes to exercise the security right.

2. The loan period shall be six months, the interest shall be paid by the 3% per month for the first three months (36% per annum) for the principal on a monthly basis, and by the 1% (12%) per month for the subsequent three months from the date of the loan until the following month from the date of the loan (12%). However, the first month may be paid by the day before the following month from the date of the next month. If the record of default occurs on three or more occasions, an additional rate of 1% (based on the first month) shall be applied from the interest of the 2 months preceding the previous month from the date of the repayment. If a loan has been granted two or more times, the amount in arrears shall be repaid in the order of the page which is larger in the number of months preceding the previous month and the early date of the loan.

4. If a creditor collects secured claims, surplus in excess of the actual claim shall be returned to the debtor with the settlement of accounts, and if the lessor has deposited the lease deposit, the creditor shall claim the full amount of the deposit to be taken over and the surplus shall be refunded to the debtor. The settlement of accounts shall not be transferred to a third party without the consent of the creditor;

15. The debtor should pay 5% of the loans, including notarial, field investigation, creation of collateral, etc., to a third party in addition to interest, and shall not claim return of the remaining amount from the expenditure of the loan. The debtor has paid the financial brokerage fee (5% of the loan) directly to the third party financial broker (person) who has mediated this lending and borrowing will at the debtor's expense or had the creditor pay by deducting the amount from the loan.

C. On January 17, 2005, the Defendant transferred to the Plaintiff the claim for the refund of the lease deposit against Nonparty 1 in order to secure the Plaintiff’s obligation for the instant loan to the Plaintiff, and on the same day, notified Nonparty 1 of the transfer of the said lease deposit claim with the content certification with a fixed date, and the said assignment notification was issued on January 18, 2005.

D. On May 3, 2007, the Korea Housing Finance Corporation (Seoul Central District Court 2007Kadan57834) received a provisional attachment order against the Defendant’s claim for return of the lease deposit against Nonparty 1. On May 7, 2007, the original copy of the provisional attachment order was served on Nonparty 1.

E. On September 3, 2010, Nonparty 1 deposited KRW 30,000,000 of the above lease deposit with the Plaintiff and the Defendant as Seoul Central District Court No. 17109, No. 17109, supra, pursuant to the latter part of Article 487 of the Civil Act, and Articles 248(1) and 291 of the Civil Execution Act (hereinafter “instant deposit”).

[Ground of recognition] Facts without dispute, entry of Gap evidence 1 to 8, purport of the whole pleadings

3. Determination as to the claim for confirmation of the holder of the deposit money

A. Determination on the cause of the claim

According to the above facts, prior to being served on Nonparty 1 with the provisional attachment decision of Korea Housing Finance Corporation, the notification of the assignment of claims with the fixed date of the defendant's prior to being served on Nonparty 1 was delivered to Nonparty 1, and the transfer of the defendant's right to return the lease deposit to the plaintiff of the plaintiff to the third party is deemed to have satisfied the requisite against the third party. Therefore, the right to claim the payment of the deposit of this case

B. Judgment on the defendant's argument

1) The defendant's assertion

The defendant asserts that the above assignment contract concluded with the plaintiff who is an illegal tax evasion credit service provider is invalid as follows.

① The Plaintiff was either a credit service provider who did not report at the competent tax office, or a third party registration number was stolen, and the actual operator was Nonparty 3, who did not actually engage in credit business, and forged the registration certificate for credit business.

② The Plaintiff did not issue a tax invoice (or a receipt for interest) to the Defendant.

③ The Plaintiff did not directly enter into a contract with the Defendant at the time of the assignment of claims, and the Defendant tried to settle the obligation upon the maturity of the lease contract on February 2, 2006, but did not receive the deposit from Nonparty 1, who was notified of the Plaintiff’s unfair assignment of claims, and thereby suffered enormous damage not only to the unfair interest but also to the important personal credit

④ When the assignment of claims is notified to Nonparty 1 at the time of the said assignment of claims, the Plaintiff belonged to the Defendant by failing to provide any explanation as to whether the lease deposit cannot be refunded KRW 30,000,000.

⑤ The Defendant received 8,700,000 won from Nonparty 3, who is not the Plaintiff.

6. The borrowed principal is merely KRW 9,000,000,000, and the bonds were transferred to the lender.

(7) Persons who have rendered distinguished services to the State and the basic livelihood beneficiaries protection rights shall be protected by the State.

【 Nonparty 3, while committing an illegal tax evasion for a long time, committed an illegal tax evasion by the Plaintiff’s Nonparty 3, in the name of the Plaintiff’s husband, his wife, with the mind of bringing much amount of interest income to his or her husband and wife, reported the credit business to his or her father and his or her father, which was a disguised report on changes in the law and omitted

9) The Plaintiff violated subparagraph 6 of the special agreement on loan by filing a lawsuit for the name of the building under the name of the Incheon District Court 2006Da35713, and the Plaintiff intentionally delayed settlement of accounts and incurred losses, such as unreasonable interest, to the Defendant without immediately delay settlement of accounts, even though he/she won the lawsuit in the above lawsuit.

2) Determination

On the other hand, the above circumstances asserted by the defendant cannot be deemed to constitute grounds for invalidation of a contract on the transfer of a security deposit for lease between the plaintiff and the defendant, and there is no other evidence to deem that the above transfer contract is null and void. Therefore, the above argument by the defendant

4. Determination as to loan claims

A. Determination on the cause of the claim

1) The plaintiff's assertion

(1) The plaintiff shall pay 1,20,00 won for delay at the rate of 4% per annum from January 17, 2005 to April 16, 2005 (10,00,000 won x 3 months x 4% per annum 60,405, 605, 60, 205, 60, 305, 60, 207, 305, 60, 207, 60, 305, 60, 206, 60, 305, 60, 207, 60, 60, 205, 60, 306, 60, 205, 306, 605, 207, 209, 306, 207, 209, 305, 207, 209.

2) Determination

A) Determination as to principal

Article 8(2) of the former Act on Registration of Credit Business and Protection of Finance Users (amended by Act No. 9418 of Feb. 6, 2009; hereinafter “Credit Business Act”) provides that “A credit service provider shall be deemed to have interest in all cases in connection with a loan regardless of its name, such as honorarium, discount, commission, mutual aid, overdue interest, substitute payment, etc.” Paragraph (5) of the same Article provides that “if a credit service provider deducts prior interest in advance, the amount actually received by the debtor, excluding the amount of deduction, shall be deemed to have been the principal and the interest rate under Paragraph (1).” Article 5 of the Addenda provides that “The interest rate under a loan agreement made before this Act enters into force shall be governed by the amended provisions of Article 8(4) of this Act on the date this Act enters into force (excluding Paragraph (4) of the same Article). It constitutes a total of KRW 500 million in the name of the fee, KRW 300,000 in the name of the loan agreement.

On the other hand, the defendant alleged that the actual amount of 8,700,000 won at the time of the loan of this case is only 8,700,000 won, and that 500,000 won cannot be included in the principal at the time of loan of this case. Thus, the defendant paid 8,70,000 won from the plaintiff at the time of loan of this case. However, upon special agreement between the plaintiff and the defendant at the time of loan of this case, the plaintiff agreed to pay 50,000 won of the loan to the broker directly or after deducting from the broker. Under the above agreement, the plaintiff paid 50,000 won to the broker pursuant to the above agreement, the above 50,000 won is included in the above loan of this case. Thus, the defendant's argument is without merit (Article 11-2 (2) of the current Credit Business Act does not receive the money from the broker from the other party to the loan of this case, notwithstanding the above provision of the loan agreement between the plaintiff and the broker of this case.

B) Determination on damages for delay

(4) The rate of delay damages for the first three months from the date of the loan agreement of this case is 4.4% per annum; 5% per annum thereafter; 1.5% per annum; 3.4% per annum from the date of loan agreement of this case to the date of January 17, 2005 to April 16, 2005 to the date of loan of this case; 1,104,000 (9,200 x 3 x 4%) 2.4% per annum; 40% per annum from the date of loan of this case to the date of 3.5% per annum; 40% per annum from the date of loan of this case to the date of 3.5% per annum; 30% per annum from April 17, 2005 to March 16, 2008 to the date of 3.5% per annum; 9% per annum from the date of loan of this case to the date of 3.5% per annum; 9% per annum from the rate of the Plaintiff.

C) Sub-decision

The obligation for delay of a pecuniary obligation constitutes the obligation for compensation due to delay of the monetary obligation, and the obligation for which the due date has not been specified, and the obligor is liable for delay from the time when the obligee receives a claim for performance of the obligation from the obligee (see Supreme Court Decision 2009Da59237, Dec. 9, 2010). Accordingly, as seen in the above B, the total amount of delay damages from January 17, 2005 to May 16, 2011 on the principal of the loan of this case is KRW 31,079,867, as the above amount of delay damages, and the above delay damages are the final and conclusive damages. Thus, the Defendant is liable for delay from the time when the Plaintiff receives the claim for performance of the above delay damages from the Plaintiff.

Therefore, barring special circumstances, the Defendant deducted KRW 3,600,000 from the Plaintiff’s loan principal amounting to KRW 9,200,000 and delay damages amounting to KRW 31,79,867 (the above KRW 3,600,000 from January 17, 2005 to April 16, 2005, and KRW 1,104,000 from April 17, 2005, and KRW 16,100 from April 17, 2005 to March 16, 2008; KRW 2,496,00 from the above loan principal amounting to KRW 31,679,867 (the above KRW 300,00,00) from the person who was paid by the Defendant; and the Plaintiff’s claim for damages for delay exceeding the above KRW 796,76,706,796,767,796,767,7,797,207).

B. Judgment on the defendant's defense, etc.

1) As to the parties’ assertion

The Defendant asserts that the parties to the loan agreement of this case are Nonparty 3, since the Defendant received KRW 8,700,000 from Nonparty 3, who is not the Plaintiff.

However, as long as the authenticity of a disposal document is recognized, the court shall recognize the existence and content of the expression of intent in accordance with the content of the document, but if the content of the statement is clear and acceptable, it may recognize facts different from the content of the statement (see Supreme Court Decision 2010Da56616, Nov. 11, 2010). Since the loan contract (Evidence A) which is a disposal document that does not dispute the authenticity is written as the party to the loan agreement of this case as the plaintiff, it is reasonable to deem the plaintiff as the party to the loan agreement of this case, and there is no other evidence to support that the party to the loan agreement of this case is Nonparty 3, the defendant's above assertion is without merit.

2) As to the assertion of deposit

The defendant raises a defense to the effect that the defendant is exempted from liability within the extent of the above amount by depositing the lease deposit amount of KRW 30,000,000.

(2) It is not presumed that the obligor transferred other claims to the obligee in relation to the repayment of the obligation, barring special circumstances, by means of a security for the repayment of the obligation or by the repayment method. Thus, it cannot be deemed that the original claim is extinguished if the assignment of claims is made, and the obligor is relieved of the obligation within the scope of its repayment (see Supreme Court Decision 95Da1660 delivered on December 22, 1995, Supreme Court Decision 95Da1660 delivered on December 30, 196). It is reasonable to view that the above legal principles are applicable even in cases where the obligee deposits the above claims to the Plaintiff in relation to the repayment of the loan of this case, (see Supreme Court Decision 200Da16660 delivered on September 3, 201, Supreme Court Decision 2000Da169790 delivered on June 3, 200, 209).

C. Sub-committee

Ultimately, the Defendant is obligated to pay damages for delay at the rate of 1,140,879 won (3,862,903 won x 44 per annum from September 4, 2011 to May 16, 2011 that the Plaintiff seeks from September 4, 201, which is the day following the deposit date, of the loan principal of this case remaining after being appropriated to the Plaintiff as above, plus 5,003,782 won ( principal 3,862,90 won x 245/365 x 44%) and damages for delay at the rate of 20% per annum from July 5, 2011.

5. Conclusion

The plaintiff's claim of this case against the defendant is justified within the scope of the above recognition, and the remaining claim is dismissed as it is without merit. The part of the judgment of the court of first instance cites more amount than the principal and damages for delay cited by the court of first instance, while the part on the part on the part on the part on the part on the part on the part on the part on the part on the part on the part on the part on the part on the part on the part on the part on the part on which the court of first instance has accepted. However, since the plaintiff did not appeal and only the defendant appealed, it cannot be changed disadvantageously to the defendant on the part on the part on the part on the part on the part on the part on the part on the part on the principal and damages for delay, and the part on the part on the part on the part on the part on the part on the part on the judgment of the court of first instance 5,003,782 and 3,862,903 won on the part on the part on the part on the part

Judges Choi Jong-su (Presiding Judge)

1) Under Article 5(3) of the former Enforcement Decree of the Credit Business Act (amended by Presidential Decree No. 20313, Oct. 4, 2007), the upper limit of interest rate was revised from 66% to 49% per annum. However, Article 2 of the Addenda of the same Enforcement Decree provides that the above revised provision shall apply from the loan agreement concluded or renewed after the enforcement date of the above Enforcement Decree ( October 4, 2007). Thus, the instant loan agreement concluded on January 17, 2005 is subject to the upper limit of 66% per annum pursuant to the previous Enforcement Decree.

2) Article 8(1) of the former Credit Business Act (amended by Act No. 8700 of Dec. 21, 2007) provides that "no credit service provider shall exceed the rate prescribed by Presidential Decree," and the Addenda of the same Act provides that "(i) this Court shall enter into force on the date after three months have elapsed since the promulgation of this Court (amended by Presidential Decree No. 20653 of Dec. 21, 2007)" and Article 5 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 20653 of Feb. 29, 2008) sets the upper limit of interest rates at 49% per annum.

3) Under Article 5(3) of the former Enforcement Decree of the Credit Business Act (amended by Presidential Decree No. 22298, Jul. 21, 2010), the upper limit of interest rate was revised from 49% to 44% per annum. However, Article 2 of the Addenda of the same Enforcement Decree provides that the above revised provision shall apply from the loan agreement entered into or renewed after the enforcement date of the above Enforcement Decree ( July 21, 2010), so the instant loan agreement shall be subject to the upper limit of 49% per annum pursuant to the former Enforcement Decree.