The effect of a contract for sales in lots concluded by a construction company on the ground of a third party as a type buyer and concluded in the name of a third party under the understanding of the financial institution (negative)

The actual parties to a loan contract are financial institutions and construction companies, since a construction company entered into a contract for a loan with a financial institution in the name of a third party on the ground that a third party is a buyer without the intention of selling an apartment house to a third party without the intention of selling it in the form of a third party, and then intends to utilize the loan by concluding a loan contract with a financial institution under the name of a third party, understanding such circumstances, collecting loans from a construction company, and making it possible to secure the physical security, the third party entered into a loan contract with the intention of not imposing liability as a debtor for the loan, and the third party is merely a person who lends the name of a loan in the form, and the third party is a financial institution and construction company. The house loan agreement entered into in the name of a third party is a legal act

Article 108 of the Civil Act

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Doz., Counsel for plaintiff-appellant)

National Credit Card Corporation, a lawsuit taken over by a national credit card company

[Defendant-Appellee] Plaintiff (Attorney Kim Young-soo et al., Counsel for defendant-appellee)

Seoul District Court Decision 2002Gadan291542 Delivered on June 24, 2003

May 7, 2004

1. Revocation of the first instance judgment.

2. The plaintiff's claim is dismissed.

3. The total costs of the lawsuit shall be borne by the plaintiff.

1. Purport of claim

The defendant shall pay to the plaintiff an amount of KRW 27,340,626 and KRW 13,00,000 among them at the rate of 24% per annum from October 8, 2002 to the day of full payment.

2. Purport of appeal

The same shall apply to the order.

1. A basic fact that has no dispute;

On July 28, 1997, the Defendant entered into a sales contract with the company (the head of July 1, 1998 was merged with the national credit card company on December 30, 1998; the credit card company was merged with the national credit card company on October 1, 2003; the national credit card company was merged with the litigation administrator on October 1, 2003; the plaintiff was merged with the above apartment proceeds of KRW 101, 403, 23 (hereinafter referred to as the "multi-family apartment of this case") among the 148 households of Seosan-si apartment of 148, Seosan-si. The sales contract was made to sell the apartment of this case from Japanese exchange construction; the head of installment financing was the company (the head of the credit card company was merged with the national credit card company on December 30, 1998; the national credit card company was merged with the plaintiff on October 1, 2003).

2. The assertion and judgment

With respect to the plaintiff's seeking the payment of the above loan, the defendant asserts that the above loan contract is null and void as a false marking.

(6) In light of the following facts: (a) the Plaintiff’s loan out of 10, 100, 2, 6, 7, 10, 10, 10, 100, 1 or 3, and 1 or 9, and the purport of the entire pleadings for the construction of new apartment units, which were to be newly built in around 197, is to pre-sale of apartment units; (b) the purchaser of apartment units or 35,00,00 won was to receive loans from the Plaintiff for each apartment unit; (c) the Plaintiff’s loan out of 10,000,000, 7,000,000, 7,000,000,000,000,000, out of the name of the name of the Plaintiff’s owner of the above loan; and (d) the Plaintiff’s loan out of 3,000,000,000,000,000

In light of the facts and records, the plaintiff originally extended a loan to the purchaser of the apartment of this case. However, if the loan amount is less than the value of the apartment, so it is secured to acquire the right to collateral security on the apartment of this case, the collection of the loan amount would be no obstacle. The apartment is almost completed at the time (the registration of preservation of ownership was completed on February 24, 1998) and it is transferred to several buyers after being preserved in the name of the primary exchange construction, so if it is possible to obtain only one exchange construction cooperation, the acquisition of the right to collateral security is also guaranteed. Thus, the sale contract is concluded with the defendant without the intention of selling the apartment of this case in form without the intention of the defendant to sell the apartment of this case, and the plaintiff tried to use the loan by concluding the loan contract with the defendant under the name of the defendant, and even if the loan was made in the name of the defendant, it is possible to collect the loan from the defendant as the guarantor of the loan, and if the defendant did not know that the defendant did not pay the remaining amount of loan to the defendant under the contract.

Therefore, the defendant is merely a person who lends the name of loan in form, and thus the substantial party to the loan contract is a foreign exchange construction with the plaintiff. The house installment agreement written under the defendant's name was done formally without the plaintiff's intent to bear the debt, and it is merely a legal act that constitutes a false declaration of conspiracy. Thus, the plaintiff's assertion is without merit without further review.

3. Conclusion

Therefore, the plaintiff's claim of this case shall be dismissed as it is without merit, and the judgment of the court of first instance which has different conclusions is unfair, and the plaintiff's claim shall be dismissed, and it is so decided as per Disposition.

Judges Signature Number (Presiding Judge) Dog-J Kim Jin Park