대여금
1. The appeal filed by the Defendant (Counterclaim Plaintiff) against the principal lawsuit is dismissed.
2. The part concerning the counterclaim among the judgment of the court of first instance is relevant.
A principal lawsuit and a counterclaim shall be deemed simultaneously.
The plaintiff filed a claim for the loan of three principal cases (10 million won, KRW 3 million, KRW 70 million, and KRW 70 million) in the first instance court on this lawsuit. The court of first instance dismissed the claim for the loan of KRW 70 million among them.
Since the defendant only appealed against this, the subject of the judgment of this court on the principal lawsuit is limited to the loan claim of KRW 110 million and KRW 3 million.
The gist of the Defendant’s assertion ex officio as to the legitimacy of the part of the claim for confirmation of existence of an obligation (main claim) among the counterclaims in the instant case is to seek confirmation of the non-existence of the said loan obligation, since the Plaintiff’s claim for the loan of KRW 110 million against the principal claim was transferred from the Defendant on January 28, 2011 to the substitute by transfer of approximately KRW 900/18942 shares ( approximately 300 square meters) out of the land in the instant case.
In a case where a creditor who has the interest in a lawsuit has filed a performance suit against the debtor and the lawsuit is pending, the debtor can contest that the creditor does not have a claim against the debtor by seeking a judgment of dismissal of the claim in the performance lawsuit above, so there is no benefit to seek confirmation that there is no obligation against the creditor separately.
(See Supreme Court Decision 2001Da22246 delivered on July 24, 2001, etc.). The Plaintiff sought a loan of KRW 110 million against the Defendant at the principal suit, and the Defendant may contest that the said loan obligation has become extinct due to payment in kind, etc. Therefore, the Defendant has no interest in filing a lawsuit seeking confirmation of non-existence as a separate counterclaim.
Therefore, the part of the claim for the confirmation of existence of the obligation among the counterclaim of this case is unlawful.
In full view of the respective entries and the overall purport of the arguments in subparagraphs 1 and 2 (including serial numbers; hereinafter the same shall apply) as to the cause of the claim for loans of KRW 110 million as to the principal claim, the Plaintiff against the Defendant on March 27, 2006.