(영문) 서울중앙지방법원 2016.10.31 2016나20502

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(영문) 서울중앙지방법원 2016.10.31 2016나20502

대여금

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1. The plaintiff's appeal is dismissed.

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

Purport of claim and appeal

The first instance court.

Reasons

1. The Plaintiff, from around 2005, was engaged in the business related to the sale of C, a commercial building, which was sold in the Yongsan-gu, Yongsan-gu, Busan Metropolitan City.

If the plaintiff pays the down payment of KRW 70,000,000 to the defendant-friendly defendant, he sold C 202 to sell it, and the defendant paid KRW 70,000,000 to the plaintiff.

However, the Defendant demanded the Plaintiff to return the said investment money on the ground that the money used for other purposes is needed due to the lack of money.

Accordingly, on January 18, 2006, the Plaintiff paid KRW 80,000,000 to the Defendant (hereinafter “instant money”).

2. Judgment on the primary cause of the claim

A. The plaintiff asserts that the plaintiff is obligated to pay the above loan to the plaintiff, since the defendant was immediately required to pay the money and returned the down payment C 202, but the sale right was not held immediately, and once the plaintiff did not resell the sale right, the plaintiff borrowed the money to the defendant, and on January 18, 2006, lent the money to the defendant 80,000,000 won.

In regard to this, the Defendant received KRW 80,000,000 from the Plaintiff on January 18, 2006, but this is not a loan, but a loan amount of KRW 70,000,000 from the Plaintiff, plus KRW 10,00,000 from the Plaintiff, and thus, the Defendant did not have any obligation to return the said money to the Plaintiff.

B. (i) Even if there is no dispute as to the erroneous payment of money, such as giving and receiving or remitting money between the parties, a monetary transaction may be conducted based on various legal causes. As such, the fact that the money transaction between the original and the Defendant is a loan under a monetary loan agreement ought to be proved by the Plaintiff asserting that it is a loan (see, e.g., Supreme Court Decision 72Da221, Dec. 12, 1972). In this case, the parties’ failure to prepare the document, such as the contract or the receipt of a loan, and thus, whether the amount of money is under a loan agreement

참조판례

-대법원 1972. 12. 12. 선고 72다221 판결

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