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1. Of the judgment of the court of first instance, the part against the defendant exceeding the following amount ordered to be paid shall be revoked.
Reasons
1. The defendant's judgment on the defense prior to the merits of this case raised by the plaintiff who was the husband of this case by lending money to the defendant by C, which is the plaintiff's husband, is unlawful.
In a lawsuit for performance, the plaintiff's standing to sue is determined by the plaintiff's assertion, and since the plaintiff asserted that he lent money to the defendant, the defendant's defense is without merit.
2. The parties' assertion
A. The Plaintiff asserted that the Plaintiff lent KRW 5,988,200 to the Defendant, and that KRW 500,000 was repaid, and the Defendant is obligated to pay KRW 5,488,200 to the Plaintiff and the delay damages.
B. The Defendant’s assertion did not borrow money from the Plaintiff, and borrowed KRW 5,475,400 from the Plaintiff’s husband C, which was the Plaintiff’s husband, and repaid KRW 500,000 on February 14, 2018.
3. Determination
A. In full view of the following circumstances, as to who is the creditor of the instant loan, there is no dispute between the parties, or as to who is the creditor of the instant loan, together with the purport of the entire pleadings as stated in the evidence Nos. 1, 2, 9, and 5, the following circumstances, namely, ① the Plaintiff withdraws from the Gwangju Bank Account in the Plaintiff’s name on October 7, 2016 and lends the amount of KRW 3 million to the Defendant; ② the Plaintiff prepares and delivers a note (Evidence No. 5) in which the details of the loan were written by the Plaintiff; ③ the Plaintiff filed the instant lawsuit against the Defendant, while the Plaintiff brought a lawsuit against the Defendant, it is reasonable to deem the Plaintiff as the creditor of the instant loan as the Plaintiff.
B. In full view of the purport of the entire pleadings as to the amount of the instant loan and the Defendant’s assertion of repayment No. 5, the Plaintiff may acknowledge that the Plaintiff lent KRW 5,475,400 to the Defendant, and the Plaintiff’s statement No. 1 and No. 5 alone exceeds KRW 5,475,400 to the Defendant.