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(영문) 서울고등법원 2017.01.13 2013나2025925
대여금 등
Text

1.The judgment of the first instance shall be modified as follows:

Defendant B shall be KRW 232,225,830, and Defendant C shall be KRW 30,442,701.

Reasons

1. Facts of recognition;

A. 1 Donation of the shares in a building) The mother of D, Defendant B, and E, the Plaintiff’s wife, F, the Gangnam-gu Seoul Metropolitan City G Site and Ground Building (hereinafter “H building”).

2) On February 25, 200, F owned the H building on the aggregate of the shares of the Plaintiff, D, Plaintiff’s children I, J (hereinafter collectively referred to as “Plaintiff, etc.”) and Defendant B, Defendant C (Defendant B’s wife), Defendants’ children K, L, L, L (hereinafter referred to as Defendants, K, L, and M No. 167/100, 3.33/100 3 I 3.83/100 43/100 48.083/10 83/100 J3.3/100 48.083/100 5 B/6/100 106/106/106/107/107/107/107/3083/38138/308.38/108, etc.) as follows:

B. The rent D of the H building was paid from the lessee of the H building from January 3, 2005 to April 10, 2008, and the Defendant B received from the lessee of the H building from the lessee of the building from June 30, 2016 thereafter.

Defendant B did not distribute to the Plaintiff, etc. the rent of H building from January 1, 2010 to June 30, 2016, the period for which the Plaintiff seeks.

C. On December 1, 2011, the assignment of claims D, I, and J transferred to the Plaintiff the claim for return of unjust enrichment in respect of H building from January 1, 2010, and notification to the Defendants on December 28, 2011.

【Ground of recognition】 The fact that there has been no dispute, entry of Gap evidence 1-1, 2, and 9-1, 2, 14, and 15 (including each number), and the purport of the whole pleadings

2. Judgment on a lawsuit trust defense

A. The Defendants asserted that: (a) the transfer of the claim for return of unjust enrichment at the rent of H building by D, I, and J to the Plaintiff; and (b) the filing of the instant lawsuit by the Plaintiff is invalid as a litigation trust.

B. The following circumstances acknowledged by the above facts and each evidence are as follows: D is the Plaintiff’s wife, and I and J are all the Plaintiff’s co-owners of H building and are dealing with the legal issues of H building on behalf of the Plaintiff, and the Plaintiff from the first instance court.

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