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1.The judgment of the first instance shall be modified as follows:
Defendant C shall pay to the Plaintiff KRW 10,000,000 as well as its related amount.
Reasons
1. Basic facts
A. On February 28, 2014, D lent KRW 20 million to E without fixing the due date (hereinafter “the instant loan”), and the loan certificate (No. 1; hereinafter “the instant loan certificate”) indicated Defendant B (F students) and E’s children as the guarantor.
B. On August 10, 2016, D entered into an assignment contract with the Plaintiff to the effect that D’s claims against D and Defendants are transferred to the Plaintiff.
(hereinafter referred to as the “transfer of claim of this case”). [Grounds for recognition] The fact that there is no dispute, Gap evidence No. 1, Eul evidence No. 1, and the purport of the whole pleadings.
2. The Defendants’ determination of this case’s defense was mainly made with the aim of enabling the assignment of claims of this case to proceed with litigation, and thus is null and void as it constitutes a litigation trust, and thus, the instant lawsuit is unlawful.
In a case where the assignment of a claim is mainly carried out for the purpose of making another person conduct the litigation for the case, Article 7 of the Trust Act shall be deemed null and void, even if the assignment of claim does not constitute a trust under the Trust Act, since Article 7 of the Trust Act shall be applied mutatis mutandis. Whether it is the primary purpose of making another person conduct the litigation shall be determined in light of all the circumstances, such as the course and method of concluding the assignment of claim contract, interval
(See Supreme Court Decision 2003Da20909 Decided March 25, 2004, etc.). The Plaintiff entered into the instant transfer contract with D on August 10, 2016, and filed the instant lawsuit on August 22, 2016, where the 12th day after which the Plaintiff was in arrears, but there is no evidence to support that D had any obstacle in filing the instant lawsuit against the Defendants, and there is no need for the Plaintiff to file the instant lawsuit. In light of the above, the Plaintiff’s primary purpose is to conduct the instant transfer of claims.