The validity of a loan agreement concluded by lending a third party in the form of a financial institution under the understanding of the financial institution to avoid the lending limit to the same person (negative)

In order to avoid the application of the Acts and subordinate statutes or the internal regulations of the financial institutions that limit the amount of loans to the same person, the actual principal debtor pays a third party to the amount of loans that the actual principal debtor intends to obtain as the principal debtor in the form of a third party, and the financial institutions understand it and understand it to the third party, the third party is merely a person who lends only the form of a third party, and the actual party to the loan contract is a financial institution and the actual party to the loan contract is a financial institution and the third party. Thus, the loan agreement in the name of the third party is merely a legal act that constitutes a false declaration of conspiracy because it is merely a formal act without the intention of bearing the obligation under the understanding of the

Article 108 of the Civil Act

Supreme Court Decision 96Da18076 delivered on August 23, 1996 (Gong1996Ha, 2847) Supreme Court Decision 98Da48989 delivered on March 12, 1999 (Gong1999Sang, 657) Supreme Court Decision 2000Da65864 Delivered on February 23, 2001 (Gong2001Sang, 759)

Plaintiff Livestock Industry Cooperatives (Law Firm Dongcheon, Attorneys Gyeong-dae et al., Counsel for the plaintiff-appellant)

Defendant

Incheon District Court Decision 2000Na799 delivered on January 12, 2001

The judgment below is reversed, and the case is remanded to the Incheon District Court Panel Division.

The grounds of appeal are examined.

1. According to the reasoning of the judgment below, the court below rejected the defendant's defense that the loan agreement of this case constitutes a false declaration of intention or a false declaration of intention, and thus, constitutes a false declaration of intention or becomes null and void as a false declaration of intention, as follows, in order to avoid internal regulations of the plaintiff union, the contract of this case lends only the name of the principal debtor to the non-party 1 in the form of a principal debtor without the defendant's intent to bear the loan obligation. The plaintiff union also understood that the substantial principal debtor under the loan contract of this case was non-party 1 and understood that the substantial principal debtor under the loan of this case

In other words, according to its employed evidence, the defendant directly signed and sealed the non-party 2, who is an employee of the plaintiff union, as the principal debtor in the monetary loan contract of this case. The plaintiff union received a loan consultation and application from the defendant at the time of entering into the loan loan contract of this case, and prepared a loan statement and an obligor inquiry statement to the defendant. In other words, when preparing a credit investigation statement, the defendant as the principal debtor, stated that the defendant's address, workplace, home address, telephone number, property status, etc. are corresponding to the borrower, and the defendant as the principal debtor. In addition, the non-party 2 notified the defendant of the possibility of the occurrence of the liability for the above loan of this case around the time when the above loan contract of this case was delivered by the defendant. Thus, the defendant signed and sealed the above monetary loan contract of this case and expressed that the plaintiff union is the principal debtor of the loan of this case (the non-party 1 had the intention to use the loan of this case to avoid the limit of the credit limit of the non-party union or decided to pay the principal and interest of the non-party 1's.

2. However, it is difficult to accept the judgment of the court below for the following reasons.

In order to avoid the application of the Acts and subordinate statutes or the internal regulations of the financial institutions that limit the amount of loans to the same person, where the actual principal debtor pays a third party to the amount of loans that the actual principal debtor intends to obtain as the principal debtor in the form of a third party, and the financial institutions understand that the third party is not liable as the debtor with respect to the third party, and the third party is merely a person who lends only the form of a third party, and the actual party to the loan contract is a financial institution and the actual party to the loan contract. Thus, the loan agreement entered in the name of the third party is merely a juristic act that constitutes a false declaration of conspiracy as it is merely a formal act without the intent to bear the obligation pursuant to the agreement of the financial institution (see, e.g., Supreme Court Decisions 96Da18076, Aug. 23, 1996; 98Da48989, Mar. 12, 199; 200Da65864, Feb. 23, 2001).

First, the court below acknowledged that the non-party 2 notified the defendant of the possibility that the non-party 2 will be liable for the repayment of the loan of this case based on the statement No. 46-9 of the non-party 2's statement and his testimony at the court of first instance, but the non-party 2's statement was not able to think at the time because the non-party 2's financial capacity was sufficient, and it was able to find out how the name truster would be liable for the loan to the plaintiff's employees, and it was no relation with the non-party 1's own opinion, and it was hard for the non-party 2 to find out the fact that the non-party 2's sale of the loan of this case was 49 million won or 60 million won, and there was no possibility that the non-party 1 would be liable for the loan of this case to the non-party 2's trust in the name of the non-party 2 to the non-party 2's loan promotion committee's loan of this case.

Furthermore, at the time of the loan of this case, the credit investigation report prepared against the defendant with regard to the occupation, etc. of the defendant at the time of the defendant was entered as if monthly income was 3 million won and 50 million won was residing in the amount equivalent to the 24th market price of the apartment owned by him, but in fact, the luminous apartment located in Incheon City was written differently from the fact that it was registered as the non-party's Masung apartment, and the author was present as a witness of the first instance court and prepared the above credit investigation report formally without fact-finding without fact-finding. However, the remaining documents of the court below are naturally prepared in the loan contract of the financial institution. Thus, it cannot be concluded that the defendant expressed his intent to become the principal debtor of the loan contract of this case and the plaintiff association was also the principal debtor of the loan of this case.

On the other hand, the court below rejected the above non-party 1. The non-party 2 was registered as the regular director of the plaintiff association at the time of the above non-party 1's loan and the non-party 1's non-party 9's loan interest in the above non-party 1's loan and the non-party 1's non-party 9's loan interest in the above non-party 9's loan. The non-party 1's loan and the non-party 9's loan interest in the above non-party 1's loan to the non-party 1's non-party 9's loan and the non-party 9's loan's loan interest in the above non-party 1's loan to the non-party 6's non-party 1's non-party 9's loan and the non-party 1's loan interest in the above non-party 9's loan was not notified to the non-party 1's non-party 1's non-party 9's loan repayment.

Nevertheless, the court below's rejection of the defendant's defense of false conspiracy on the grounds as stated in its reasoning does not constitute an unlawful act that affected the conclusion of the judgment by misunderstanding the facts against the rules of evidence or failing to exhaust all necessary deliberations, or by misapprehending the legal principles concerning false conspiracy in lending another person's name. The ground of appeal pointing this out is with merit.

3. Therefore, without examining the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Han-gu (Presiding Justice)