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(영문) 서울중앙지방법원 2017.01.25 2016가단114871

대여금

Text

1. The instant lawsuit shall be dismissed.

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

Reasons

1. Determination as to the cause of claim

A. On March 23, 2007, the Plaintiff loaned KRW 60,800,00 to the Defendant at the interest rate of KRW 4.5% per month and the due date of repayment on October 22, 2007.

(hereinafter “instant loan”). [The ground for recognition: the absence of dispute, Gap’s evidence No. 1, Eul’s evidence No. 4, the purport of the whole pleadings]

B. According to the above facts of recognition, the defendant is obligated to pay the loan of this case and damages for delay to the plaintiff, unless there are special circumstances.

2. Judgment on the defendant's defense

A. The Defendant, inasmuch as he/she received bankruptcy decision or immunity decision, raises a defense that the instant claim is unlawful.

According to the evidence Nos. 1-2 and 1-2, the defendant filed a bankruptcy and application for immunity with the Suwon District Court on August 11, 2010 (U.S. District Court 2010Hadan7141 and 2010Ha7141), the bankruptcy was declared on September 9, 201, and the decision to grant immunity was rendered on January 11, 201, and the fact that the decision to grant immunity became final and conclusive around that time.

If a decision to grant a discharge to a bankrupt becomes final and conclusive, the bankrupt’s obligation is natural obligation and the ability and executory power of the suit is lost, and the suit in this case is unlawful as there is no benefit of protection of rights.

B. The Plaintiff asserts that the Defendant is not exempt from liability because the Defendant did not enter the instant loan claim in the creditor list in bad faith.

However, in light of the following circumstances, the evidence alone presented by the Plaintiff is insufficient to recognize that the Defendant did not enter the instant loan claims in the creditor list in bad faith.

Therefore, the plaintiff's above assertion is without merit.

1) The Defendant rendered bankruptcy and application for immunity only after August 1, 2010, when three years have elapsed since the date on which the instant loan claim occurred, and the decision to grant immunity became final and conclusive after about five years have elapsed, and there is no evidence to support that the Plaintiff urged the Defendant to pay the loan during the said period. 2) The Defendant is all the loan obligations of this case.