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1. The plaintiff's appeal is dismissed.
2. The costs of appeal shall be borne by the Plaintiff.
Purport of claim and appeal
The first instance court.
Reasons
1. Determination on the cause of the claim
A. The gist of the Plaintiff’s assertion is that the Defendant, at the construction site of Goyang-gu Dtel (hereinafter “instant new construction site”), was awarded a subcontract for temporary re-construction from Hanyang-gu Dtel Construction Co., Ltd., a contractor, but the said land was provisionally seized as it did not receive construction cost of KRW 78,452,270. Accordingly, the Plaintiff, as to the above construction cost, a notary public prepared a notarial deed of money loan loan agreement No. 40 of Jan. 18, 2010 (hereinafter “instant notarial deed”), and thereafter, the Defendant transferred the “F apartment 306,2203” located at the time of Jeonyang-gu Co., Ltd., a company implementing the said new construction to payment for the said construction price, and all of the Plaintiff’s debt under the instant notarial deed is extinguished. As such, enforcement based on the notarial deed should be denied.
B. Determination 1) In order to take effect as payment in kind, other benefits paid by the debtor in lieu of the original performance must be real, and where registration or enrollment is required, registration or enrollment shall be completed (see Supreme Court Decision 95Da1371, Sept. 15, 1995). In light of such legal doctrine, the following purport of the argument is comprehensively taken into account: (a) the entry of No. 3, No. 2, and No. 2; and (b) the fact-finding results of each inquiry into the Korea Land and Housing Corporation and the Court Administration; and (c) the Defendant: (a) on November 201, 202, installed temporary materials at the construction site of the instant new construction site and received 80,000,000 from E as “F apartment 306,2203, 2203, in kind” (hereinafter “the receipt of this case”).
(2) The payment by subrogation under Paragraph (2) of the receipt of this case shall be made by the defendant in comprehensive construction for life.