1. The plaintiff's claim is dismissed.

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

Basic Facts

On July 2016, the Plaintiff established a limited liability company C (hereinafter referred to as “non-party company”) and operated the refined restaurant with the trade name “H” on the first floor of the Fgymnae in Seo-gu, Seo-gu, Gwangju as its representative, the Plaintiff changed the representative of the non-party company to the Defendant.

From the early July 2016 to the end of December 2016, the defendant operated the above cafeteria as the representative of the non-party company.

The Plaintiff paid KRW 37,00,000,000 to the Defendant on June 29, 2016, KRW 8,000,000 on June 30, 2016, KRW 1,000,000 on July 6, 2016, KRW 2,000,000 on July 11, 2016, KRW 4,000,00 on July 30, 2016, KRW 6,000 on August 1, 2016, and KRW 37,000,000 on September 4, 2016.

The defendant decided to take over the above restaurant from the plaintiff around December 2016, and operated the above restaurant as an individual entrepreneur from the time on January 1, 2017 after being registered as an individual entrepreneur.

[Grounds for recognition] Facts without dispute, Gap evidence Nos. 1 and 2, and the purport of the entire argument of the plaintiff's assertion by the plaintiff, the plaintiff, at the defendant's request that the defendant pay 40,000,000 won to the defendant when operating the restaurant at the time of operating the restaurant as the representative of the non-party company, if the defendant lends operating expenses to the non-party company, or he fully repaid at the time of settlement of accounts around December 2016.

Therefore, the Defendant is obligated to pay the Plaintiff the loan amounting to KRW 40,000,000 and damages for delay.

At the request of the plaintiff that it is difficult to operate the restaurant, the defendant received the payment as the representative of the non-party company and entrusted the above restaurant, and only used the restaurant operating expenses from the plaintiff to operate the restaurant, and there is no personal loan of KRW 40,000,000.

The evidence presented by the Plaintiff alone is difficult to recognize that the Plaintiff lent KRW 40,000 to the Defendant. Rather, in light of the following facts and circumstances acknowledged by comprehensively considering the purport of the entire pleadings in each of the entries in the evidence Nos. 1 through 3.