(영문) 서울고등법원 2015.10.16 2015나7673 | 리걸엔진

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(영문) 서울고등법원 2015.10.16 2015나7673

대여금

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1. The plaintiff's appeal is dismissed.

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

The purport of the claim and appeal is the purport of the appeal.

Reasons

1. The plaintiff's assertion that D, his mother, borrowed KRW 200 million to the defendants upon the request of the defendants to lend the funds for the clothing distribution business, around 2005, and thereafter, D transferred the loan claims amounting to KRW 200 million to the defendants to the plaintiff. Accordingly, the plaintiff, D, and the defendants agreed to jointly and severally repay the above loan claims to the plaintiff through a three-party agreement. The plaintiff was issued with a promissory note notarial deed that the defendants became the issuer on September 5, 2005 as evidence. Thus, the defendants are jointly and severally liable to pay to the plaintiff the above loan amounting to KRW 20 million and damages for delay from September 6, 2006, which is the day following the maturity of the above promissory note.

2. In full view of the purport of the argument in Gap evidence No. 1, the defendants jointly issued to the plaintiff at par value 200,000,000, and at sight on September 5, 2005. If the payment of the above promissory note is delayed on the same day, the defendants shall jointly request the plaintiff to prepare a notarial deed to the effect that there is no objection even if they are immediately subject to compulsory execution. It is recognized that the notary public made a notarial deed of promissory note No. 325 as a document of preparation of movable property by law firm 2005 and No. 325.

However, in light of the very diverse grounds for the preparation of a promissory note notarial deed, the above facts alone are insufficient to recognize the fact that D lent KRW 200 million to the Defendants, or that D agreed that D transferred a loan claim to the Defendants to the Plaintiff, and that the Defendants agreed to pay the borrowed money to the Plaintiff with its consent.

Since the burden of proof for the fact of lease is based on the Plaintiff, the same applies to the case where the Defendants did not disclose the reasons why the said promissory note was prepared.

In addition to the evidence A No. 1, there is witness D's testimony that corresponds to the plaintiff's assertion.

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