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(영문) 서울서부지방법원 2016.03.10 2015가단215161
구상금
Text

1. Each of the plaintiffs' claims is dismissed.

2. The costs of lawsuit are assessed against the plaintiffs.

Reasons

1. The plaintiffs' assertion that the defendant borrowed KRW 100 million from the bank on January 31, 2008, and the plaintiffs jointly and severally guaranteed the above obligation to the defendant's bank. The plaintiff Gap's 54,934,257 won due to the defendant's failure to repay the above obligation, and the plaintiff Eul's 54,934,256 won by subrogation. Since the plaintiffs have the right to claim the above subrogation payment to the defendant under Article 41 (1) of the Civil Act, the defendant is obligated to pay the above amount to the plaintiffs.

In addition, from November 2007 to November 28, 2010, the plaintiffs worked as the head of the defendant's association or the vice-association. On July 13, 2007, the defendant's director and the council of delegates set the plaintiffs' salary of 2.5 million won per month. Thus, the defendant is obligated to pay each of the total of 15,112,903 won [1,00,000 won = 12,50,000 won (2,50,000 won x 200 days x 20/31 day)] from November 2008, which is unpaid to the plaintiffs.

2. Determination

A. Article 24(3)2 and 5 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (hereinafter “Urban Improvement Act”) provides that a contract to become a partner shall undergo a resolution of a general meeting, in addition to the loan of funds, its method, interest rate, method of repayment, and matters stipulated in the budget, with respect to the claim for indemnity, and thus, in light of the purport of the above provision, if a partnership for maintenance and improvement projects borrows funds or enters into a contract to become a partner's burden

(2) In light of the above legal principles, the Defendant’s act of extinguishing the principal obligation is based on the premise that the principal obligation exists. As such, in a case where the principal obligation was not established at the time of the surety’s act of contributing to the principal obligation, the Defendant’s repayment of the principal obligation would only lead to the issue of return of unjust enrichment between the obligee and the obligee and the obligee.

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