대여금
1. The instant lawsuit shall be dismissed.
2. The costs of lawsuit shall be borne by the Plaintiff.
1. The Plaintiff asserts that, as the cause of the claim, the Plaintiff asserted that, on January 5, 2018, KRW 35 million, out of the loan claims of KRW 50 million against the Defendant of Nonparty C (Plaintiff), the Defendant claimed a loan that was transferred to the Defendant on December 16, 2018.
In regard to this, the defendant asserts that the claim transfer contract between the plaintiff and the non-party C for the main purpose of having them conduct litigation is not permissible, and even if it is not so, it cannot claim the installment payment in lump sum as there is no agreement for loss of the time limit.
2. Determination
A. In a case where the assignment of claims is made with the primary purpose of having the litigant conduct litigation, even if the assignment of claims does not constitute a trust under the Trust Act, Article 6 of the Trust Act is applied by analogy, which is invalid.
Whether the main purpose is to allow litigation shall be determined in light of all the circumstances, such as the process and method of concluding the assignment contract, the time interval between the transfer contract and the lawsuit, the status relationship between the transferor and the transferee, etc.
(see, e.g., Supreme Court Decision 2017Da272103, Oct. 25, 2018). (b)
Facts of recognition
(1) The non-party C and the non-party D are legally married, and the defendant's representative director E is the non-party D's wife, and is the non-party C's children.
B. On July 20, 2017, the Plaintiff filed a lawsuit against the Defendant for the payment of the acquisition amount on the ground that Nonparty C’s loan claim amounting to KRW 50 million against Nonparty C’s Defendant was transferred on August 29, 2012.
(2017 Ghana 1883). Consolidated, however, when an agreement was reached between Nonparty C and the Defendant, the Plaintiff received the withdrawal of the lawsuit on January 4, 2018. On January 5, 2018, the Defendant newly drafted a loan certificate of KRW 50 million to Nonparty C.
Applicant Nonparty C filed a divorce lawsuit against Nonparty D on October 4, 2018 (Seoul Family Court 2018Dhap42927), and D as a counterclaim on October 2018.