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(영문) 대구지방법원서부지원 2016.07.06 2015가단11865
약정금
Text

1. The claim of this case is dismissed.

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

Reasons

1. The parties' assertion

A. The Plaintiff lent KRW 50 million to the Plaintiff Co., Ltd. (hereinafter “C”) on September 7, 2007, and was set up a collateral on the land owned by C as security.

On January 5, 2009, the Defendant acquired the secured debt of the right to collateral security (right to collateral security) that C bears upon acquiring C from S as a substantial operator and a private owner D.

(Article 7 of the Agreement). Accordingly, the defendant is obligated to pay to the plaintiff the above borrowed amount of KRW 50 million and damages for delay.

B. Defendant 1) The purport of the agreement made by the Defendant with D on January 5, 2009 is that D, which would receive the C takeover price paid by the Defendant on the part of the Defendant, did not spend it in any other place, and instead, the Defendant did not agree to pay the debt directly to the Plaintiff, etc. who is the obligee of C. The Plaintiff’s claim against C was incurred on September 7, 2007, and was used as the operating fund of the corporation, the five-year extinctive prescription expired.

3 Persons who actually take over C from D are not the defendant but the defendant's punishment E and F.

Therefore, even if the Plaintiff is liable for the repayment of the borrowed money, the subject should be the E or F rather than the Defendant.

2. Determination

(a) The following facts may be acknowledged either in dispute between the parties or in combination with the whole purport of the pleadings in each entry in Gap evidence 1 to 6:

1) On September 7, 2007, the Plaintiff lent KRW 50 million to C on September 7, 2007, and agreed not to pay interest but to pay immediately upon the Plaintiff’s request (hereinafter “the Plaintiff’s claim related thereto”).

(2) In order to secure the instant loan claim, the Plaintiff concluded a contract on September 10, 207 with respect to 9,398 square meters of G Miscellaneous District G Dolju-gun, G Doldong-gun on September 10, 2007.

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