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(영문) 서울고등법원 2018.05.16 2017나2038790
양수금
Text

1. The plaintiff's appeal is dismissed.

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

The purport of the claim and appeal is the purport of the appeal.

Reasons

1. The reasoning of the court of first instance’s explanation concerning the instant case is as follows, and thus, it is consistent with the reasoning of the judgment of the first instance, except for partial dismissal as follows. Thus, this is acceptable in accordance with the main sentence of Article 420 of the Civil Procedure Act

(1) The main part of the plaintiff's assertion of 2, 11 through 17 of the judgment of the court of first instance shall be amended as follows:

(1) The Plaintiff operated the dental clinic (hereinafter “E dental clinic”) under the name of “E dental clinic” on the 7th and 8th of the Bupyeong-gu Incheon Bupyeong-gu D Building. The Plaintiff via C, transferred all rights and obligations to the Defendant regarding the dental clinic at the price of KRW 300 million (hereinafter “instant transfer agreement”).

(2) During the process of concluding the above transfer contract, the Plaintiff entered into a dental clinic transfer contract No. 3 (hereinafter “instant transfer contract”) with the Defendant’s seal affixed thereto.

A) Upon receipt of the instant transfer contract through C, even if the Defendant did not directly affix his/her seal, the said transfer contract was duly formed since the contract was concluded through C with the power of representation granted by the Defendant (the Plaintiff stated that the said transfer contract was concluded with the Defendant’s agent at the date of pleading in the first instance trial, but the said statement constitutes a confession or a person’s statement at the trial court, the Plaintiff asserts that it would be cancelled or withdrawn. However, the said statement made at the date of pleading in the first instance trial stated the cause of the claim or the means of attack defense, and it is difficult to view it as a confession or a person’s statement. Therefore, it is not separately determined as to whether the Plaintiff’s assertion at the trial on the process of preparation of the transfer contract in the instant case constitutes a legitimate revocation or withdrawal of confession. Accordingly, the Defendant is obligated to pay 30 million won and damages for delay to the Plaintiff, even if not, in the process of operation of the dental clinic.

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