Plaintiff (Attorney Jeong Yong-sung et al., Counsel for the plaintiff-appellant)

Defendant (Attorney Park Young-jin, Counsel for the defendant-appellant)

May 14, 2010

Chuncheon District Court Decision 2008Gahap414 Decided December 26, 2008

1. Revocation of a judgment of the first instance;

2. All of the plaintiff's claims are dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

Defendant (Appointed Party) 1 shall pay to the Plaintiff 64,285,714 won, 2, 3 each of the above 42,857,142 won, and 5% per annum for the period from December 28, 2007 to the date of the first instance judgment, and 20% per annum for the period from the next day to the date of full payment.

2. Purport of appeal

The judgment of the first instance is revoked. All of the plaintiff's claims are dismissed.

1. Basic facts

According to the evidence No. 5-1 and No. 2, the deceased Nonparty (hereinafter “the deceased”) is married with the Defendant (the appointed party; hereinafter “Defendant”) 1 and has 2 and 3 persons appointed in one’s own manner. However, the fact of death on December 28, 2007 can be acknowledged.

2. The parties' assertion and judgment

A. The assertion

As the cause of the claim in this case, the Plaintiff, on September 28, 2007, lent KRW 150 million to the Deceased and received the Deceased’s certificate of money borrowed (No. 1; hereinafter “the loan certificate in this case”), the Deceased’s certificate (No. 2), the Deceased’s certificate (No. 3), the Deceased’s driver’s license (No. 6), and the promissory note (No. 6) with face value of KRW 200,000,000,000,000,000,000,000,000 won. Therefore, the Plaintiff asserts that the Defendant, the heir of the Deceased, and 2 and 3, who are the deceased, are liable to pay to the Plaintiff the amount equivalent to their shares of inheritance.

As to this, the Defendant merely lent money to the extent of KRW 150 million in the past, and promised to lend money to the deceased with a loan certificate or promissory note notarized by the deceased without any special relation. On the date of the lease, the Defendant asserted that if the deceased who had a seal imprint certificate and a certificate of seal impression were issued with a notarized certificate, promissory note, or a certificate of seal impression, etc., the Plaintiff could have received a notarized certificate or a certificate of seal impression, but could not receive a notarized document, such as a notarized letter or a certificate of seal impression. The loan certificate of this case also stated a notarized letter as a pre-payment, and the loan certificate of this case also stated as a notarized letter as a documentary performance, the Plaintiff was not allowed to present a receipt or a certificate of seal impression directly paid to the deceased, and the statement as to the means of payment of the loan was not consistent. On the other hand, in light of the economic situation of the deceased, the Plaintiff was a large amount of KRW 150 million,000,000,000 from the bank account of the deceased, etc.

B. Determination as to whether the Plaintiff lent KRW 150 million to the Deceased

1) According to the overall purport of Gap evidence Nos. 1 through 3 and 6, the loan certificate of this case is to be accompanied by the official seal of the deceased's personal seal impression (Evidence No. 2) after the name of the deceased and the seal of the deceased's name is affixed, and the name of the deceased's personal seal impression (Evidence No. 3) is stated in the form printed in the same letter, and the seal of the deceased's personal seal impression (Evidence No. 2) is stated in the name of the publisher's name and the seal of the deceased's personal seal impression, the seal of the deceased's personal seal impression is affixed, and the seal of the deceased's personal seal is affixed to a promissory note No. 260,00 from September 28, 2007 to December 28, 2007.

2) However, the court may, either ex officio or upon request of the parties, examine the parties themselves, and, if the parties fail to appear without justifiable grounds, the court may admit that the allegations of the other party as to the issue of examination prove true (Articles 367 and 369 of the Civil Procedure Act).

In this case, the Defendant, the inheritor of the Deceased, stated that the Plaintiff was not fluent with respect to the reasons why the Plaintiff lent KRW 150 million to the Deceased, the source of loan, etc., and that it is difficult to believe that the Deceased was not able to use the loan by borrowing it, and thus, this court applied for an examination to the Plaintiff himself, thereby adopting this, and accordingly, the Defendant presented the Plaintiff’s personal examination. Accordingly, the Defendant agreed to lend money on the condition that the Deceased would have undermined the notarial deed of KRW 200 million and the loan certificate. The Plaintiff did not use a promissory note and the loan certificate as notarial deed and the loan certificate as notarial deed to the Deceased, and the Plaintiff was not present at the court on September 23, 2009; however, the Plaintiff was a legitimate date for pleading as well as on the date for pleading without any justifiable reason.

Thus, the defendant's argument about the above newspaper can be recognized as true, and therefore, even if the plaintiff prepared the loan certificates and promissory notes of this case held by the plaintiff, it is recognized that the plaintiff did not lend 150 million won to the deceased. Thus, the plaintiff's claim against the defendant and the designated parties on the premise that the plaintiff lent the above money to the deceased is without merit.

C. On this point, the plaintiff asserts that since a loan for consumption is a loan for consumption, not a loan for real property, but a loan for consumption is established only when the borrower receives money, etc. in reality or acquires economic benefits such as the actual acceptance of money, so the defendant's argument premised on the real nature of the loan for consumption is without merit and the plaintiff's claim is justified (the plaintiff's argument seems to the purport that as long as a loan for consumption was made by the deceased because it was made to the plaintiff by drawing up the loan certificate of this case, the defendant, the heir of the deceased, and the designated parties, are liable to pay the money stated in the purport

However, even if a monetary loan contract was concluded between the plaintiff and the deceased as alleged in the plaintiff, the monetary loan contract is a bilateral contract, the lender bears the obligation to transfer the ownership of the money to the borrower as a bilateral contract, and the borrower bears the obligation to return the money to the lender the same amount, which has mutual significance. On the other hand, one of the parties to the bilateral contract may refuse the performance of his/her obligation until the other party provided the obligation. In this case, the plaintiff failed to pay 150 million won to the deceased and failed to perform his/her obligation, so the defendant and the designated parties, the inheritor of the deceased, do not have the obligation to return the said money to the plaintiff.

Therefore, the plaintiff's above assertion is without merit.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed in its entirety due to the lack of grounds, and the judgment of the court of first instance, which has different conclusions, is unfair, and the plaintiff's claim against the defendant and the designated parties is dismissed in its entirety, and it is so decided as per Disposition.

[Omission of List of Appointed]

Judges Jo Nam-dae (Presiding Judge)