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(영문) 부산고등법원 2016.09.01 2016나1069
대여금
Text

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

2. The costs of appeal shall be borne respectively by each party.

Reasons

1. The summary of the judgment of the first instance court: (a) Defendant B, not a pharmacist, entered into a lease agreement with the Plaintiff, and agreed to bear KRW 160 million as a pharmacy founder and pay KRW 500,000 per month to the Plaintiff; (b) on June 30, 2008, the Plaintiff loaned KRW 160,000,000 to Defendant B the pharmacy founder (hereinafter “the loan agreement of this case”); (c) Defendant C and D jointly and severally guaranteed the above obligations; (d) Defendant B established a joint mortgage on the apartment owned by F and the real estate attached to H; and (e) Defendant B entered into a lease agreement with the Plaintiff under the name of the Plaintiff and registered as a business proprietor; and (e) the Plaintiff and Defendant B established and operated the above pharmacy on March 6, 2012; and (e) concluded a new pharmacy with the Plaintiff on June 30, 2008, the Plaintiff sold money out of the Plaintiff’s license and the Plaintiff’s sale of the same to the Plaintiff.

The Plaintiff, in its principal lawsuit, primarily against the Defendants, sought the return of loans under the loan agreement of this case, preliminaryly, and the return of unjust enrichment against the Defendant B when the said contract is null and void.

In addition, Defendant B, as a counterclaim, claimed that the loan contract of this case was null and void and sought cancellation of the registration of the establishment of a neighboring mortgage on the attached real estate.

The court of the first instance shall establish a pharmacy independently or jointly with the plaintiff, not a pharmacist, with respect to the plaintiff's main claim and the counter-claim claim by the defendant B among the main claim, and the contract of the loan for consumption of this case is part of the illegal pharmacy establishment agreement as above.

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