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(영문) 서울고등법원 2018.01.12 2016나2061519
부당이득금
Text

1.The judgment of the first instance shall be modified as follows:

The defendant is Seoul Eastern District Court C.

Reasons

1. Basic facts

A. Mtel in Songpa-gu Seoul is an aggregate building consisting of section 41 for exclusive use.

One of the sections for exclusive use was registered in D on January 29, 2002, and the registration of ownership transfer was completed on October 30, 2006 in the name of G Co., Ltd. (hereinafter “G”).

B. As to Mtel No. 101, the Defendant set up the right to collateral security, which is the maximum debt amount of 400,000,000 won on October 30, 2006, and the debtor Esiopia Co., Ltd. (hereinafter “Esiopia”), and the Plaintiff set up a maximum debt amount of 1,014,00,000,000 won on August 28, 2008, and the debtor G-mortgage.

C. On November 23, 2012, the Defendant filed an application for an auction with the collateral secured by the right to collateral security with the amount of KRW 200,000,000 (200,000) from D to the date of full payment, claiming that he/she acquired the remainder of the purchase price for EMM from D with the remainder of KRW 200,000,000,000, and the amount calculated at the rate of KRW 20% per annum from December 1, 2006 to the date of full payment. Accordingly, on November 26, 2012, the voluntary auction procedure was initiated with the Seoul East Eastern District Court C, Mtel 101.

In addition, on December 28, 2012, the Defendant filed a lawsuit claiming for payment of the acquisition amount of KRW 200,000,000 and damages for delay at the rate of 20% per annum from December 1, 2006 to the date of full payment, by asserting that the Esuasta did not pay the acquisition amount of KRW 200,000,000 until November 30, 2006.

However, on November 7, 2013, the Busan District Court Decision 2012Gahap23415, which held that the Esuasta shall pay to the defendant 200,000,000 won of the takeover amount and 5% per annum from December 1, 2006 to October 19, 2013, the delivery date of the complaint, and 20% per annum from the next day to the date of full payment.

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