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(영문) 창원지방법원 2017.08.24 2017나52204
손해배상금등
Text

1. All appeals filed by the Defendant (Counterclaim Plaintiff) are dismissed.

2. The costs of appeal are borne by the Defendant (Counterclaim Plaintiff).

Reasons

1. The reasoning of the court's explanation concerning this case is as follows: (a) the defendant's application for the argument and resumption of argument in the first instance court's judgment shall be deemed as "each entry in the evidence Nos. 1 through 3" in the first instance judgment No. 3, No. 11; and (b) except for adding the following judgment to the defendant's application for the argument and resumption of argument in the lawsuit trust, it shall be deemed as the reasoning of the first instance judgment; and (c) thus, it shall be cited in accordance with the main sentence of

2. The Defendant asserts that the instant lawsuit is unlawful since Nonparty C’s transfer of his/her share to the Plaintiff of Quatation (registration number D and chassis number E) constitutes a litigation trust with the main purpose of enabling the Plaintiff to conduct litigation. Thus, the instant lawsuit is filed by a person without the standing to be a party, and thus, it is unlawful.

In a case where the assignment of a claim, etc. primarily with the intention of allowing the plaintiff to conduct procedural acts, Article 6 of the Trust Act applies mutatis mutandis even if the assignment of claim does not fall under a trust under the Trust Act, and thus, Article 6 of the Trust Act is null and void. Whether the main purpose is to conduct procedural acts is to be determined in light of all the circumstances, including the process and method of concluding the assignment of claim contract, interval between the transfer contract and the lawsuit, and the relationship between the transferor and the transferee, etc. (see, e.g., Supreme Court Decision 2014Da74919, Sept. 24, 2015). However, in this case, there is no evidence to prove that C, with the intention of enabling the plaintiff to conduct procedural acts, has transferred his/her share to the plaintiff (the credit transfer contract submitted with the evidence No. 17 means only the confirmation of the share between the plaintiff and C), rather, it can be known in accordance with the purport of the entire arguments and arguments as well as the entire arguments.

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