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(영문) 서울고등법원 2016.07.22 2015나2058929
제3자이의
Text

1. The plaintiff's appeal is dismissed.

2. Upon the plaintiff's preliminary claim added at the trial, the separate sheet shall be set out.

Reasons

1. The reasoning of the judgment of the court of first instance is the same as the “1. Basic Facts” under the main sentence of Article 420 of the Civil Procedure Act, except for the parts that dismiss or add basic facts as follows.

"261,250,000,000" in the column of "total of three pages of the judgment of the first instance court" shall be "26,125,00,000".

In the first instance court’s five pages 1, “I.E., on October 15, 2012 and early November 2012, 2012, C paid a total of KRW 950 million out of the instant advance payment received by the Defendant as rebates to D, and thereafter D returned the said amount to the Defendant.”

2. Judgment as to the main claim

A. The Defendant’s pledge against the Plaintiff’s assertion as collateral is nonexistent or invalidated for the following reasons. Since the Defendant contests this, there is a benefit to seek confirmation against the Defendant.

For the same reason, the Defendant is obligated to deliver the instant investment certificate to the Plaintiff.

1) The agreement on the age of the player and protocol of the instant progress payment is null and void as a juristic act of anti-social order, which was made on the condition that E pays the balance of 2.4 billion won for rebates to D. Therefore, the Defendant’s claim for the return of the instant advance payment to C does not exist, and the Defendant’s pledge, which is the secured claim, is also nonexistent or null and void. 2) The agreement on the age of the player and protocol of the instant progress payment, are invalid as a false declaration of agreement made by E as a means

Therefore, this case's pledge agreement concluded by the plaintiff is also null and void.

3 E, D, the Plaintiff, while hiding the fact that the agreement on the progress payment and the composition of the instant agreement was made as a means of avoiding the implementation of the rebates agreement, was deceiving the Plaintiff as if the instant advance payment were paid as a normal construction cost, and the Plaintiff was so deceiving.

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