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Reasons
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(영문) 의정부지방법원 2015.10.22 2014가합56338
부당이득금
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1. The plaintiff's claim is dismissed.

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

Reasons

1. Presumed factual basis

A. On April 18, 2012, the Plaintiff, D, and E drafted a notarial deed of a monetary loan agreement (No. 84, 2012) stating that “The creditor D shall grant a loan of KRW 150,000,000 to the Plaintiff and E on May 16, 201, with the maturity of payment of KRW 150,000 to the Plaintiff and E on May 15, 2012; 3% per annum; and 30% per annum per annum (hereinafter “instant loan”).

B. Around February 28, 2013, the Defendant received the instant loan claim from D and applied for a compulsory auction of real estate to the Jung-gu District Court C.

C. On October 20, 2014, the instant court drafted a distribution schedule with which the Defendant would distribute 284,331,424 won, 263,979,452 won, and 263,979,452 won, and 154,887,591 won, to the Plaintiff, who is the debtor and owner, who is the debtor and owner, in the second order, among the dividends of KRW 702,198,467.

[Ground of recognition] Facts without dispute, Gap evidence 1, the purport of the whole pleadings

2. The assertion and judgment

A. Of the amount claimed by the Plaintiff to the Defendant, KRW 113,979,452 is interest on the instant loan.

However, the Defendant received a total of KRW 78,975,00,000 from E on the day indicated below, which is interest on the instant loan.

Therefore, 78,975,00 won out of the dividend amount of the defendant 263,979,452 should be deducted.

B. There is no dispute between the parties that the Defendant received money from E on the date the Plaintiff asserts.

However, only the evidence of Gap 2, 4, 5, 6, 7, 8, 9, 10 (including the serial number) is insufficient to view that the amount remitted to the defendant by Eul as the interest on the loan of this case, and there is no other evidence to acknowledge it.

Rather, the following circumstances recognized by the above evidence and evidence Nos. 1 to 4, i.e., ① the date or amount of remittance of money is difficult to be deemed as the interest on the instant loan (if the interest rate of 3% per annum on 150,000,000 won is 375,000 won on a given day of each month (=150,000,000 won).

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