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(영문) 인천지방법원부천지원 2019.04.10 2018가단116714

양수금

Text

1. The instant lawsuit shall be dismissed.

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

Reasons

1. Around January 30, 2018, the Plaintiff asserted C lent the 1,347,152 proposal in China to the Defendant. Around August 15, 2018, the Plaintiff received the 250,000 proposal in China from the Defendant. Around August 15, 2018, the Plaintiff acquired the 1,097,152 proposal in Chinese loans to the Defendant (i.e., 1,347, 152 proposal - 250,000 proposal) from C, and on August 21, 2018, the Defendant was obligated to pay the above acquisition amount to the Plaintiff.

2. The defendant's judgment on the defendant's defense prior to the merits constitutes a litigation trust, and thus, the lawsuit of this case is unlawful, and thus, in a case where the assignment of claims is not a trust under the Trust Act, even if the assignment of claims is not a trust under the Trust Act, Article 6 of the Trust Act shall be applied mutatis mutandis. The issue of whether to allow the transfer of claims is the primary purpose shall be determined in light of all the circumstances such as the process and method of concluding the contract for the transfer of claims, the interval between the transfer contract and the lawsuit, and the relationship between the transferor and the transferee

(See Supreme Court Decision 2012Da23412 Decided March 27, 2014 (see, e.g., Supreme Court Decision 2012Da23412). In light of these legal principles, the Defendant prepared a loan certificate stating that C lends 1,347,152 bills in China to the Defendant around January 30, 2018, when the Defendant had imported the full payment from China, around January 30, 2018, in which C had imported the full payment from China, the Defendant and C set the competent court of the said loan case as the Chinese Minedong City, and the amount of the acquisition amount reaches KRW 180,00,000,000,000, there is no objective evidence to prove that the Plaintiff paid the payment for the transfer of claims to C; on the other hand, C had filed an application for the payment order against the Defendant with the Incheon Busan District Court on July 10, 2018, and the Defendant applied for the payment order to the same court around the same month.