(영문) 수원지방법원 2014.11.21 2013가단106471

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(영문) 수원지방법원 2014.11.21 2013가단106471

양수금

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1. The plaintiff's claim is dismissed.

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

Reasons

1. The parties' assertion

A. On January 201, the Plaintiff’s assertion C requested the Defendant to lend business operation funds, and each of the Defendant lent KRW 32 million on January 5, 201, and KRW 15 million on February 7, 2011. Around September 12, 2013, the Plaintiff transferred the above loan claims against the Defendant to the Plaintiff for the repayment of the Plaintiff’s debt amounting to KRW 60 million, and notified the Defendant of the transfer of the above credit at that time.

Therefore, the defendant is obligated to pay to the plaintiff 47 million won of the acquisition money and damages for delay.

B. The Defendant’s assertion that businesses such as the development and sale of cosmetics should be jointly operated with the Defendant’s assertion, and after establishing D, 37 million won was invested by C, and the remainder of 10 million won was delivered to E at the Defendant’s request from C, and it did not borrow money from C.

2. Judgment on the main defense of this case

A. The Defendant asserts to the effect that the instant lawsuit is unlawful, since C’s transfer of the loan claim to the Plaintiff is a discretionary lawsuit trust solely for the purpose of filing the instant lawsuit.

B. In a case where the assignment of a claim, etc. mainly takes place with the intention of making another person conduct the litigation, Article 7 of the Trust Act shall apply mutatis mutandis even if the assignment of claim does not fall under a trust under the Trust Act, and thus, is null and void. Whether it is the principal purpose of the lawsuit shall be determined in light of all the circumstances, including the details and methods of concluding the assignment of claim contract, the interval between the transfer contract and the time from the transfer contract to the lawsuit, and the personal relationship between the transferor and the transferee (see, e.g., Supreme Court Decision 2000Da4210, Dec. 6, 2002). Therefore, it is difficult to recognize that the plaintiff primarily entered into the assignment of claim with C solely on the ground that

참조조문

-신탁법

-신탁법 제7조

참조판례

-대법원 2002. 12. 6. 선고 2000다4210 판결

유사 판례

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