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(영문) 서울고등법원 2018.04.06 2017나2035135
부당이득금
Text

1. Of the judgment of the court of first instance, the part concerning the conjunctive claim is revoked, and all of the plaintiffs' conjunctive claims are dismissed.

Reasons

1. Basic facts

A. The Plaintiffs are creditors of F and E.

F and E are simple mother and child, and the defendant is F and third degree of relatives.

B. The Plaintiffs filed a lawsuit seeking the payment of loans against F and E with Seoul Northern District Court 2014Kahap26259.

On June 15, 2016, the above court sentenced that "F and E jointly and severally file an appeal with the Plaintiffs amounting to KRW 170,000,000 per annum from October 1, 2014 to March 31, 2015, KRW 20% per annum from the next day to September 30, 2015, and KRW 15% per annum from the next day to the date of full payment (hereinafter referred to as "the loan claim of this case")," and sentenced that "F and E shall pay the Plaintiffs the interest calculated at each rate of KRW 170,00,000 per annum from October 1, 2014 to March 31, 2015, and KRW 15% per annum from the next day to the date of full payment (hereinafter referred to as "the loan claim of this case"), F and Seoul High Court appealed as 2016 or 2042167, but the appeal was dismissed on April 27, 2017.

C. From February 28, 2005, E had operated the instant building in the name of “G” (hereinafter “instant business”). From April 1, 2013 to March 31, 2014, E used the instant building from “I to KRW 20,000,000,000 for sublease deposit, and KRW 3,460,00 for the rent month.

On March 3, 2016, the Defendant newly registered his/her business with the trade name “G” and operated “G” until now after he/she transferred the instant building from I to KRW 20,000,000 for sublease deposit, and KRW 3,460,00 for the rent month.

[Ground of recognition] Facts without dispute, Gap evidence 2, 10 evidence, Eul evidence 1 through 3, 15, and 21, Gap evidence 6 video, the purport of the whole pleadings

2. Judgment as to the main claim

A. The plaintiffs' assertion (the selective assertion) (1) The defendant filed a claim for return of unjust enrichment by subrogation of creditors, without the actual operation intention of "G", lent only the name of business operator to E and actually operated by E.

This is invalid as a false declaration of agreement.

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