Where a third party has entered into a monetary loan agreement with a financial institution and its principal debtor for the purpose of having another person obtain a loan under the name of a third party and use it, whether the above loan agreement constitutes a false representation (negative in principle)

Article 108 of the Civil Act

Supreme Court Decision 98Da17909 Decided September 4, 1998 (Gong1998Ha, 2394) Supreme Court Decision 2006Da53290 Decided June 14, 2007, Supreme Court Decision 2008Da7772, 7789 Decided June 12, 2008

National Bank of Korea (Law Firm Sejong, Attorneys Kim Jin-sung et al., Counsel for the defendant-appellant)

Defendant (Law Firm Initial, Attorneys Lee Dong-name et al., Counsel for the defendant-appellant)

Busan District Court Decision 2016Na51849 Decided June 21, 2018

The judgment below is reversed, and the case is remanded to Busan District Court Panel Division.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. In order to establish a false declaration of intention, there is an agreement between the other party and the other party as to the disagreement. If a third party directly signed and sealed a loan-related document, such as a loan-related document, such as a loan-related agreement for consumption, the principal debtor is expressed by the other party as the principal debtor of the loan-related contract. Thus, even if a third party has an intention to obtain a loan under the name of a third party and use it, or has decided to repay principal and interest at another party's expense, it is merely an intention to vest the economic effect under the loan-related contract in principle in a third party. Thus, it is difficult to deem that there is a disagreement between the third party's intention and its indication (see, e.g., Supreme Court Decisions 98Da17909, Sept. 4, 1998; 2006Da53290, Jun. 14, 2007). However, if a third party has signed and sealed a loan-related document with intent to vest not only the economic effect under the loan-related contract but also its legal effect.

In a specific case, the above special circumstances should be determined by comprehensively taking into account the following circumstances: (a) whether the borrower and the nominal lender interests are identical; (b) whether the loan was actually paid and directly received; (c) whether the loan was made based on the credit of the nominal lender or the actual borrower’s security was provided; (d) whether the loan was made based on the credit of the nominal lender; (e) whether the loan was conducted; and (e) whether the nominal lender has urged the nominal lender to perform his/her obligations in accordance with the overdue payment of the loan and the loan; and (e) whether the nominal lender has been urged to pay his/her obligations depending on the loan and the degree of the investigation; and (e) the course of the loan and the occupation and status of the nominal lender (see Supreme Court Decision 2008Da772

2. Review of the reasoning of the lower judgment and the record reveals the following facts.

A. Saelim Industry Co., Ltd. (hereinafter “Saelim”) was the starting work of the Busan Suwon-gu ( Address 1 omitted) and the △△△△dong (hereinafter “○○○dong △△△△△△”) on the 38 lots of land (hereinafter “Saelim”).

(b) Sale in lots or part payments by executives and employees of scenic forests;

1) On July 2007, Paelim and Cyle Construction entered into a loan agreement with the Plaintiff and the Plaintiff agreed to pay the loan to the buyers of ○○dong △△△△△△ by implementing an intermediate payment loan, and deposit the loan into the account designated by Cyelim or Cyle Construction, and if the buyer delays the repayment of the loan, the Paelim and Cyle Construction agreed to pay the loan to the Plaintiff jointly with the buyer (hereinafter “instant loan agreement”).

2) Around June 2007, Saelim and Cyle Construction commenced a new construction of ○○○dong, △△△△△, and the sale rate was low, such as the sale of only six households among the total 299 households, even after two months.

3) On the basis of the conclusion of a sales contract under the name of executives and employees, Pream was to obtain an intermediate payment loan from the Plaintiff pursuant to the instant loan agreement and raise funds.

4) The 291 executives and employees of Pung forest entered into a contract for the sale and purchase of the land. At the time, the down payment pursuant to the contract for sale and purchase was paid out of the account in the name of CYD Construction.

5) In addition, executives and employees of the above Pung Forest received part payments loans from the Plaintiff. At the time, employees of the Plaintiff’s post office located in △△dong, Busan, who were in charge of part payments loans for the above sales contract, visited the place of business of the Pung Forest located in Gangnam-gu Seoul ( Address 2 omitted) and completed a comprehensive loan document from the executives and employees of Pung Forest.

6) Saelim and Cye Construction arranged intermediate payment loans by means of resale of ○○○○ Dong △△dong, sold to executives and employees of Palim, etc., and around May 2012, the occupancy commencement date was set on July 26, 2012, and the non-re-exporteded households were entrusted to the KAB Co., Ltd. on September 27, 2012, and the Plaintiff et al. was designated as the first beneficiary.

7) After the maturity of an intermediate payment loan became due, the Plaintiff agreed to extend the lending period and the extension of the lending period, and extended the lending period on several occasions pursuant to the request for extension of the lending period of the Pung forest and CYC construction. The Plaintiff requested the Pung forest to pay interest on the intermediate payment loan and received the interest from Punglim. The Plaintiff continued to extend the lending period and received interest from Punglim even after the date of commencement of the occupancy, after the ○○○ Dong △△△ Hospital was completed and the date of commencement of the occupancy was designated.

8) Pung Forest had an executive officer or employee repaid the remainder of 288 households other than three intermediate payments loans, including the Defendant, through resale, etc. However, for three loans including the Defendant, he/she refused to repay the loans on the ground that he/she caused damage to the company in relation to the ○○dong △△△ Project.

9) At the time, the Nonparty, the representative director of Pung forest, purchased one household at ○○ Dong-dong, and received an intermediate payment loan. In the case of Busan District Court Branch Branch Branch Decision 2014Da22316, the Nonparty testified that, in relation to the intermediate payment loan, there was no demand from the Plaintiff for the repayment of the loan, and that, in any way, he did not know of the process as to the exemption of the obligation to repay the intermediate payment loan.

C. Sale in lots and part payments to the defendant

1) On August 23, 2007, the sales contract was prepared between the Defendant, who was the head of ○○○○dong △△△△△△ Factory as an executive of Pung Forest, and the ○○○○○○○○○○○○○○○○○ Construction, which was the head of △△△△△△△△△△△, as follows (hereinafter “instant apartment”).

A) The total sales amount is KRW 1.789 billion, among which the down payment is KRW 268.47 billion, the total sum of KRW 268.47 billion shall be divided into two parts, and the intermediate payment shall be paid KRW 1.788 billion in six equal annual installments, respectively. The remainder shall be paid KRW 447.45 million in the remainder at the time of occupancy.

B) The supplier shall set the lending interest rate pursuant to the terms and conditions of good offices of lending financial institutions for part payments loans and the buyer shall not raise any objection thereto. The interest rate shall be paid by the supplier on a subsequent basis by the date preceding the beginning of the period of designation of the occupancy, the buyer shall be borne by the buyer on the date of commencement of the period of designation of the occupancy, and the buyer may move into a redemption for the interest paid by the supplier.

2) On November 9, 2007, the Defendant also prepared and submitted to the Plaintiff documents related to intermediate payment loans, including a loan transaction agreement as of November 9, 2007, stating the loan amounting to KRW 894.9 billion, and the loan period of KRW 3 billion. The Defendant deposited the total amount of the loan into the account of Pung forest (hereinafter “instant loan”).

3) Upon completion of △△△△○○dong, around May 2012, the instant apartment complex was also entrusted with the Plaintiff, etc. as a priority beneficiary on September 27, 2012. At the time, Pung forest and Cwal Construction sought the Defendant to fulfill the obligation to pay the remainder due to the sales contract, did not take ordinary legal procedures, such as seeking to cancel the sales contract, and did not properly notify the Defendant of the fact of trust.

4) The Plaintiff extended the loan period of this case to February 2, 2015 upon the request for the construction of wind and sawal. The interest was paid from winding until May 2014. During that process, the Plaintiff sent letters or sent letters by mail without consultation with the Defendant.

5) A public auction procedure for the instant apartment was conducted around May 2017 during the instant lawsuit. In that process, the Plaintiff was paid the principal and agreed interest, the full amount of the provisional payment, but did not receive KRW 149,543,739, which was part of the overdue interest.

3. In full view of the circumstances as indicated in its holding, the lower court determined that the actual party to the loan agreement of this case is reasonable to be deemed the Defendant, and that the agreement of this case cannot be deemed null and void as a false declaration of agreement, in view of the following: (a) the Defendant signed and sealed the sales contract and the loan agreement; (b) the Defendant was the head of the headquarters in charge of selling ○○○ Dong △△dong at the time of the loan of this case; and (c) the Plaintiff

4. However, the above determination by the court below is difficult to accept. Examining the following circumstances revealed through the above facts in light of the legal principles as seen earlier, the defendant prepared a loan document in his name and submitted it to the plaintiff, but the defendant appears to sign and seal the loan document from the beginning to the effect that not only the economic effect of the loan but also the legal effect of the loan belongs to the public, not only the defendant, but also the defendant's signature and seal on the loan document. Since special circumstances are recognized to deem that the plaintiff belongs to Pung forest, the actual borrower, and that the defendant did not bear the obligation, it is reasonable to deem that the loan agreement in his name constitutes a false conspiracy and thus null and void.

A. Although the Defendant was the head of the headquarters in charge of the sales of △△△△△○○dong, such circumstance alone alone does not lead to the agreement between the Defendant, who is an executive officer or employee of the Nelim, and the Defendant appears to have prepared and submitted the sales contract and the intermediate payment loan documents for the instant apartment in accordance with the company’s decision.

B. In light of the sale rate of △△△△△dong at the time of the preparation of the sales contract and the intermediate payment loan documents, and the specific implementation process, unlike the written contract for sales, it is not deemed that the Defendant, who is an executive officer or employee of the Pelim, actually intended to purchase the instant apartment, or to obtain an intermediate payment loan. Moreover, it is reasonable to deem that the Pelim and the Celim Construction also have prepared a formal sales contract for the purpose of using the intermediate payment loan for the purpose of using the ○○ Dong △△△△△△△△△△△△△△△△△△△△△△ Group without the intention to actually sell the apartment, and that he had the intent to directly repay the loan obligations.

C. The Plaintiff appears to have known the fact that the executives and employees of 299 households entered into the sales contract for 291 households with 97% or more of the 299 households △△△△△△△, and that the loan was deposited in the accounts for elim. ② At the time, the ordinary sales rate is 2% or less, and the officers and employees of e.g., the e., the e., the e., the e., the e., the e., the e., the e., the e., the e., the e., the e., the e., the e., the e., the e., the e., the e., the e., the e., the e., the e., the e., the e., the e., the e., the e., the e., the e., the e., the e., the e. the e. the e., the Defendant. the e. the e. the e., the e.).........

5. Nevertheless, the lower court rejected the Defendant’s defense of false conspiracy solely based on its stated reasoning. In so determining, it erred by misapprehending the legal doctrine on false conspiracy with the parties to a loan contract, thereby adversely affecting the conclusion of the judgment. The ground of appeal assigning this error is with merit.

6. Therefore, without further proceeding to decide on the remaining grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kwon Soon-il (Presiding Justice)