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(영문) 서울중앙지방법원 2013.07.24 2012가합506110
부당이득금
Text

All of the plaintiffs' claims against each corresponding defendant listed in the attached list 2 is dismissed.

The plaintiffs' litigation costs.

Reasons

1. Basic facts

A. 1) The Plaintiffs received a loan from the pertinent Defendant prior to the relevant Defendant’s establishment date specified in the separate list as shown in the separate list No. 3, and provided a collateral on the relevant real estate as indicated in the same list for securing the loan obligation. However, in the case of each loan listed in the separate list No. 7-1, and No. 7-2 related to Plaintiff B, the obligor is not Plaintiff B but C, and Plaintiff B created a collateral security as a surety for the loan obligation (hereinafter collectively referred to as “the instant loan transaction”).

In addition, in the loan transaction of the plaintiffs, the stamp tax and the cost of establishing the right to collateral security (hereinafter the above stamp tax and the cost of establishing the right to collateral security) in accordance with the preparation of the loan transaction agreement shall be deemed to be "the incidental

(2) The loan transaction of this case was used as a loan transaction agreement and a mortgage contract form prepared by the Defendants in advance.

Among them, in the form of a mortgage agreement that was used in loan transactions between the Plaintiff A and Defendant Hong Kong Bank, as shown in [Attachment 3] No. 35], as to the bearing of the cost of creation, the provision that “the cost of creation of mortgage shall be jointly and severally borne by the obligor and the founder, unless there is a separate agreement between the obligee and the expenses incurred in creation of mortgage” (hereinafter “instant customer burden clause”) was included, and the portion classified by [Attachment 3] Nos. 35 and 1

On the other hand, in the form of a loan transaction agreement used at the time, the relevant provisions were provided in a way that the party who bears the stamp tax pursuant to the preparation of the agreement can choose one of the "principal (debtor), "bank (creditor)," or "50% of the principal/bank" as to the party who bears the burden of stamp tax, and the party who bears the burden at his/her option indicated Account in his/her choice. However, the Plaintiff A is so.

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