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(영문) 서울고등법원 2019.10.18 2018나2014418

부당이득금

Text

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the Plaintiff.

The purport of the claim and appeal is the purport of the appeal.

Reasons

1. The plaintiff's assertion

A. From April 13, 2012 to November 4, 2014, the Plaintiff entered into an agreement on interest exceeding 30%, which is the highest interest rate stipulated in the Interest Limitation Act (hereinafter “Peremptory interest rate”), and repaid KRW 2,950,340,000 in total after borrowing KRW 2,657,16,000 from the Defendant in total after borrowing KRW 2,950,340,000.

However, even if the Defendant, who is an unregistered credit service provider, agreed to receive interest exceeding the highest interest rate from the Plaintiff, the excess portion agreement is null and void. Thus, the amount equivalent to the interest paid in excess shall be appropriated for the original, and the Defendant shall return the remainder to the Plaintiff as unjust enrichment.

B. The Plaintiff and the Defendant transferred most of the transactions related to lending and borrowing transactions, such as the number of days, monthly income, etc., to C and D accounts designated by the Plaintiff (hereinafter “Plaintiff account”) and Defendant’s respective accounts (hereinafter “Defendant account”). Since its details are unclear and difficult to distinguish, the Plaintiff’s unjust enrichment should be calculated by regarding the amount of money transferred to the Plaintiff’s account designated by the Plaintiff as a loan, or the amount agreed to be borrowed by the Plaintiff out of the Defendant’s maturity money. The Plaintiff’s money transferred from the Plaintiff’s account to Defendant’s account, and the Defendant’s money transferred from the Plaintiff’s account to the Defendant’s account, and the amount of money transferred from the Plaintiff’s account to the Defendant’s account and the amount of money paid by the Plaintiff to the Defendant as the Plaintiff’

C. When calculated by such a method, the defendant is as shown in the loan account statement in attached Form 1.

참조조문