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(영문) 서울고등법원 2017.01.12 2016나2015516
채무부존재확인
Text

1. All appeals filed by the Plaintiff (Counterclaim Defendant) are dismissed.

2. The costs of appeal shall consist of a principal lawsuit and a counterclaim.

Reasons

The principal lawsuit and counterclaim shall be judged together.

1. The reasons why the court should state this part of the facts are identical to the corresponding part of the judgment of the first instance, if it excludes from the second part of the judgment of the first instance the deletion of the “the name of the fund for the purchase of the second class”, and thus, it refers to the corresponding part of the judgment of the first instance.

2. Summary of the parties' arguments

A. The Plaintiff borrowed KRW 97 million from the Defendant from January 24, 2014 to July 8, 2014.

In the instant case, KRW 97 million, the Defendant claimed as a counterclaim, is a money that the Plaintiff borrowed from the Defendant as a used car purchase fund of KRW 241,000,000,000, which is separate from that of the Plaintiff’s used car purchase fund of KRW 241,000.

As the Plaintiff failed to repay the above KRW 97 million to the Defendant, the Defendant unilaterally deprived of the legitimate right to purchase the 23 used cars listed in the Plaintiff’s attached list, which is irrelevant to the said money, and committed a tort of selling 22 out of the said used cars at a price lower than the market price. If the Plaintiff sold the said used cars, at least 37 million won was able to gain profit, and the Plaintiff has a damage claim against the Defendant for KRW 37 million.

Therefore, with respect to the loan liability of KRW 97 million against the Defendant, the Plaintiff offsets the amount of KRW 37 million against the Defendant on an equal amount. Therefore, the Plaintiff’s loan obligation against the Defendant does not exceed KRW 60 million (i.e., KRW 97 million - KRW 37 million).

B. The Plaintiff was an employee of “C” as a used vehicle sales business entity operated by the Defendant (using the name of AB, a parent of the Plaintiff).

The sum of the loans that the Defendant lent to the Plaintiff from January 24, 2014 to July 8, 2014 was only KRW 97 million in the name of the used cars purchase fund, and it is regardless of the purchase of used cars to receive a high rate interest, such as the Plaintiff’s assertion.

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