Law Firm Domestic, Attorney Seo-young, Counsel for the plaintiff-appellant

2. C public corporation:

Defendant C, Law Firm Newro, Attorney Yoon Byung-gu, Counsel for the defendant-appellant-appellee)

(a) 580,000,000 won;

B. Of the money stated in the above paragraph (a) above, the amount shall be calculated by applying 5% per annum from January 17, 2014 to August 18, 2014, and 20% per annum from the next day to the date of complete payment. Of the money stated in the above paragraph (a) above, the amount shall be calculated by applying 4.71% per annum from February 27, 2013 to August 18, 2014 to 50,000,000 won per annum from the next day to the date of complete payment. The amount calculated by applying 4.71% per annum from the next day to the date of complete payment.

2. Defendant B pays the following amount to the Plaintiff:

(a) 95,000,000 won;

B. The amount set forth in the above paragraph (a) is 5% per annum from February 20, 2013 to August 18, 2014, and 20% per annum from the next day to the day of full payment.

3. The plaintiff's remaining claims are dismissed.

4. Of the costs of lawsuit, the part arising between the Plaintiff and Defendant B is borne by Defendant B, and 1/7 of the part arising between the Plaintiff and Defendant C is borne by the Plaintiff, and the remainder is borne by Defendant C.

5. The above paragraphs 1 and 2 can be provisionally executed.

The defendants of the Young-gu branch shall jointly and severally pay to the plaintiff 675,00,000 won and 80,00,000,000 won per annum from January 17, 2014 to the service date of a duplicate of the complaint of this case, and 20% per annum from the next day to the day of complete payment to the day of complete payment, 5% per annum from February 20, 2013 to the day of delivery of a duplicate of the complaint of this case, 5,000 won per annum from February 20, 2013 to the day of complete payment, and 20% per annum from the next day to the day of complete payment to the day of complete payment; 50,000,000 won per annum from February 27, 2013 to the day of delivery of a duplicate of the complaint of this case; and 4.71% per annum from the day after the day of complete payment to the day of complete payment.

A. The assertion

원고가 자신의 대여금 혹은 최**, 임$$, 최##, 최!!으로부터 피고들에 대한 대여금 채권을 양도받았다고 주장하며 양수금을 구하는 이 사건 소에 대하여, 피고 丙은 양수 금 부분은 소송신탁에 해당하므로 무효라고 주장한다.다. 판단

1) In a case where an assignment of claim, etc. mainly takes place with the intention of having the assignment of claim, Article 6 of the Trust Act applies mutatis mutandis even if the transfer of claim does not constitute a trust under the Trust Act, and thus, is null and void. Whether it is the primary purpose of allowing the transfer of claim is to be determined in light of all the circumstances, including the details and methods of concluding the assignment of claim, interval between the transfer contract and the filing of the lawsuit, and the status relationship between the transferor and the transferee (see Supreme Court Decision 2012Da23412, Mar. 27

2) 살피건대, 피고 丙이 제출한 증거들만으로는 최**, 임$$, 최##, 최!!이 대여금 채권을 원고에게 양도한 것이 소송행위를 하게 하는 것을 주목적으로 하는 채권양도라고 인정하기에 부족하고, 달리 이를 인정할 증거가 없다. 피고 丙의 본안전항변은 이유 없다.

2. As to the loan and acquisition amount of KRW 580,000

(a) Facts of recognition;

In addition to the whole purport of the pleadings, the following facts may be acknowledged in the entries in Gap's Evidence Nos. 1, 2, 4, 5, and 6:

① The Defendants are married, and the Plaintiff is the father of Defendant B and the principal of Defendant C.

② The Defendants purchased the said real estate in KRW 2,014,020,00 on January 28, 2013 at the auction procedure commenced on January 28, 2013, 2013, with respect to the real estate listed in the separate sheet (hereinafter referred to as “the instant real estate”), from the Chungcheong District Court (hereinafter referred to as “the instant real estate”), and completed the registration of ownership transfer for each/2 shares on February 27, 2013.

③ In this process, the Defendants borrowed money from the Plaintiff, the lowest* (the Plaintiff’s leader and Defendant B’s external assistance), the sum of USD 1 (the Plaintiff’s mother and Defendant B’s external assistance) as indicated below, and appropriated the insufficient portion of the purchase fund with this money (hereinafter each loan is specified by the sequence).

[Attachment 1: Details of loans borrowed by the Defendants]

A person shall be appointed.

4 피고들은 순번 1 대여금 중 원금 20,000,000원을 변제하였다. 5 최**, 임$$은 원고에게 순번 1 대여금 채권 중 잔금 80,000,000원의 채권을 양도하고 2014. 3. 28. 피고들에게 양도사실을 통지하였다.

B. Determination

1) According to the above facts of recognition, the Defendants are obligated to pay to the Plaintiff KRW 580,00,000 ( = KRW 80,000,000 + Loans KRW 500,000 + Interest and delay damages thereon).

2) Meanwhile, in light of the facts and circumstances described below, it is reasonable to view that the Defendants agreed to jointly and severally pay the above money at the time when they borrow the money mentioned in the Plaintiff, Choi*, and Park Jong-dae [Attachment 1] from the Plaintiff, and the Defendants agreed to pay the money (the Defendant CC’s claim for the divided debt is not accepted).

① Although the Defendants were currently at the Daejeon Family Court No. 2014ddan5391 (principal lawsuit) and 2014ddan7274 (Counterclaim), the Defendants were in the course of a divorce lawsuit, or at the time of borrowing the said money, they continued the marriage by forming a community as a husband and wife. The instant real estate was also purchased jointly.

② 피고들은 임대 또는 전매를 통한 재산상 이익을 얻기 위해 이 사건 부동산을 공동명의로 매수하는 과정에서 부족한 자금을 충당하기 위해 피고 乙의 외조부모인 최**, 임$$, 피고 乙의 아버지인 원고로부터 돈을 빌렸다. 3 피고들은 위 차용금 전액을 피고 7 명의의 하나은행 계좌(계좌번호: 625-910197-55708)로 송금받았고, 이후 순번 1 대여금의 원금 중 20,000,000원을 피고들 각자의 부담 부분을 구별하지 않고 변제하였다.

3) Therefore, the Defendants are jointly and severally liable to pay to the Plaintiff KRW 580,00,000 and KRW 80,000,000, whichever is the day following the due date for repayment, 5% per annum prescribed by the Civil Act from January 17, 2014 to August 18, 2014; damages for delay calculated at the rate of 20% per annum prescribed by the Act on Special Cases concerning Expedition, etc. of Legal Proceedings from the next day to the day of full payment; ② with respect to KRW 5,00,000,000, calculated at the rate of 4.71% per annum, which is the day of delivery of a copy of the instant complaint from February 27, 2013 to August 18, 2014; and damages for delay calculated at the rate of 20% per annum as prescribed by the Act on Special Cases concerning Expedition, etc. of Legal Proceedings from the next day to the day of full payment.

3. As to the loan and acquisition amount of KRW 95,000,000

A. The plaintiff's assertion

1) 피고들은 매수자금 중 부족한 부분을 충당하기 위하여 위 2. 항의 580,000,000원 외에도 원고, 최##(원고의 처남이자 피고 乙의 외삼촌), 최!!(원고의 처이자 피고 乙의 어머니)로부터 아래 [표2] 기재와 같이 돈을 빌렸다. [표2: 원고가 주장하는 피고들의 차용금 내역]

A person shall be appointed.

2) 최##, 최!!은 원고에게 위 나, 다항 대여금 채권을 양도하고 2014. 3. 28. 피고들에게 양도사실을 통지하였다.

3) Therefore, the Defendants are jointly and severally liable to pay to the Plaintiff KRW 95,000,000 (=loan KRW 50,000,000 + KRW 45,000,000) and interest and delay damages thereon.

B. Determination

1) Defendant B’s portion

Defendant B does not dispute this part of the Plaintiff’s assertion. Accordingly, Defendant B is obligated to pay to the Plaintiff damages for delay calculated by the rate of 5% per annum from February 20, 2013 to August 18, 2014, the delivery date of the copy of the complaint in this case, and the damages for delay calculated by the rate of 20% per annum from the next day to the day of full payment.

2) The part of Defendant C C.

가) 갑 제3, 4, 5, 7, 8호증의 각 기재만으로는 피고 丙이 원고, 최##, 최!!(이하 '원고 등'이라 한다)로부터 위 95,000,000원을 빌렸다는 점을 인정하기에 부족하고, 달리 이를 인정할 증거가 없다.

B) As to this, the Plaintiff asserts that this part of Defendant B’s act of borrowing is within the scope of the right of ordinary household affairs, or the act of expression under Article 126 of the Civil Act is formed with the right of basic representation.

C) The term “legal act with respect to daily home affairs” under Article 832 of the Civil Act refers to a legal act with respect to ordinary affairs necessary in the community of the married couple. The specific scope is determined not only by the social status, property, and revenue capacity of the married couple, but also by the custom of the community, which is the place of the living of the married couple. In determining whether the specific legal act is a legal act with respect to daily home affairs, it should be determined by considering not only the internal situation of the married couple who performed the legal act but also by the objective type, character, etc. of the legal act (see, e.g., Supreme Court Decision 2000Da8267, Apr. 25, 2000). In addition, if the wife acted on behalf of the husband without any special authority, it should be justified not only by the wife that there was a right of representation under Article 126 of the Civil Act to act on behalf of the wife, but also by the other party to act on behalf of the husband (see, e.g., Supreme Court Decision 98Da19898.

D) In light of the above legal principles, comprehensively taking account of the following circumstances, which can be acknowledged as follows, as to the instant case’s health class, the facts and circumstances acknowledged earlier, as Gap’s evidence Nos. 9, Eul’s evidence Nos. 1 and 2, and the overall purport of oral argument, it is difficult to view Defendant B’s act of borrowing within the scope of ordinary family life insurance, and the liability for expressive representation under Article 126 of the Civil Act is not established upon Defendant B’

① Defendant B borrowed money from the Plaintiff, etc. to use it as the purchase fund of the instant real estate, and the Plaintiff et al. knew about this purpose.

② The Defendants purchased the instant real estate at an auction procedure to obtain economic benefits by resale or lease of the instant real estate, which is a building for business facilities of the first and fifth underground floors. In fact, the Defendants seem to have actually leased the instant real estate at a store, thereby gaining economic benefits.

③ The purchase price of the instant real estate is KRW 2,014,00,000, and Defendant B borrowed money from the Plaintiff, etc. is KRW 95,000,000. Even when considering the Defendants’ social status, occupation, property, capacity to import, etc., the said amount is deemed to be a matter of ordinary household affairs arising from a couple’s common life.

④ As evidence of the above KRW 95,00,000, there are evidence Nos. 3 and 4 (a letter of loan). However, the above documents are written in the name of C/C by Defendant B, or written in the name of C/C, Defendant B’s sole name, and there is no evidence to conjecte the fact of delegation by Defendant C/C, such as the power of attorney and certificate of personal seal impression.

E) This part of the claim against the Defendant C C is without merit.

4. Conclusion

The plaintiff's claim against the defendant B is accepted on the ground of the reasons, and the plaintiff's claim against the defendant C, who is the defendant, is accepted within the scope of the above recognition, and the remaining claim is dismissed as it is without merit. It is so decided as per Disposition.

Judges fixed-type

Judges Park Jong-young