Plaintiff (Counter-Defendant and Re-Counterclaim Plaintiff) (Law Firm Jung-Jon, Attorney Kim Jong-soo, Counsel for plaintiff-appellant)

Defendant (Counterclaim Plaintiff, Plaintiff-Counterclaim Defendant)

February 5, 2014

Seoul Central District Court Decision 2012Gadan12106 decided February 20, 2013 (Mains), 2012Gadan94085 (Counterclaim), 2012Gadan273512 (Re-Counterclaim) decided February 20, 2013

1.The judgment of the first instance shall be modified as follows:

A. The Defendant (Counterclaim Plaintiff, Counterclaim Plaintiff, and Counterclaim Defendant) received the amount of KRW 80,929,890 from the Plaintiff (Counterclaim Defendant, Counterclaim Plaintiff), and 49% interest per annum from January 12, 2012 to the date of complete payment, and implement the procedure for registration of cancellation of the registration of the establishment of the neighboring mortgage completed pursuant to No. 8014, Feb. 12, 2008, with respect to each real estate indicated in the attachment, as to each real estate indicated in the attachment.

B. The Plaintiff (Counterclaim Defendant, Counterclaim Defendant, and Counterclaim Defendant) shall pay 80,929,890 won to the Defendant (Counterclaim Defendant, Counterclaim Defendant), and 49% interest per annum from January 12, 2012 to the date of full payment.

C. The Plaintiff (Counterclaim Defendant, Counterclaim Plaintiff)’s remainder of the main claim and the second counterclaim are all dismissed.

2. The total cost of the lawsuit is assessed against the Plaintiff (the counterclaim Defendant, and the counterclaim Plaintiff) by aggregating all principal lawsuit, counterclaim and counterclaims.

3. The 1.-2. The provisional execution may be effected.

1. Purport of claim

The principal lawsuit: With respect to each real estate indicated in the separate attachment registration (hereinafter “each real estate of this case”) to the Plaintiff (Counterclaim Defendant, Counterclaim Plaintiff, Counterclaim Plaintiff, hereinafter “Plaintiff”), the Defendant fulfilled the procedure for cancelling the registration of the establishment of a neighboring mortgage (hereinafter “each of the instant mortgage registration”) completed on February 12, 2008 by the Seoul Central District Court’s registry office No. 8014 (hereinafter “each of the instant mortgages registration”) (the Plaintiff withdrawn the claim for cancelling the additional registration of each of the instant mortgages registration from the trial).

Counterclaim: The same shall apply to the Disposition No. 1. B.

The defendant shall pay to the plaintiff the amount of KRW 19,961,613 as well as the amount of KRW 5% per annum from January 11, 2011 to the delivery date of a duplicate of the re-claim of this case, and 20% per annum from the next day to the day of complete payment (the plaintiff did not specify the base date for delay payment in amending the purport of the claim of the re-claim, but considering the cause of the re-claim of this case and the claim of the re-claim before the modification, the base date for filing the claim of the re-claim of this case seems to have been written simply omitted and omitted).

2. Purport of appeal

The judgment of the first instance is revoked. The same as the purport of the principal lawsuit and the second counterclaim. The defendant's counterclaim is dismissed.

A principal lawsuit, a counterclaim and a counterclaim shall be deemed as the same.

1. Facts of recognition;

A. On February 12, 2008, the Plaintiff borrowed KRW 100 million from Nonparty 3 on the same day to secure the above loan obligation, and concluded a mortgage contract with Nonparty 3 and the Plaintiff with respect to each of the instant real estate owned by the Plaintiff with a maximum debt amount of KRW 150 million on the same day, and completed the registration of each of the instant mortgage to Nonparty 3.

B. On May 19, 2010, the Plaintiff agreed to borrow the principal amounting to KRW 90 million from the Defendant, who is a credit service provider, at an annual interest rate of 36%, at an annual rate of 49%, at a maturity of 18 August 2010. The interest shall be paid on the 19th day of each month, and if the payment of interest is delayed at least once, the interest shall be paid on the 19th day of each month, and if the payment of interest is delayed, the interest shall be immediately forfeited and all obligations shall be repaid

C. On May 19, 2010, Nonparty 3 transferred the claim secured by each of the instant mortgage claims to the Plaintiff (hereinafter “transfer of this case”) to the Defendant on May 19, 2010, and the registration of transfer of the right to collateral security was completed against the Defendant on the 20th of the same month.

D. The Plaintiff repaid to the Defendant the sum of KRW 14 million on June 18, 2010, KRW 27 million on July 20, 2010, KRW 27 million on July 20, 198, KRW 5 million on December 13, 198, and KRW 4 million on December 23, 201.

E. The Defendant filed a motion for voluntary auction of each of the instant real estate with the Plaintiff as the obligor, and the instant court rendered a decision to voluntarily commence auction as of May 25, 201, around 1493, around 2011.

F. On January 11, 2012, the Plaintiff deposited KRW 65,550,000 with the deposited person as the Defendant for the repayment of the secured debt of the said auction case under this Court No. 198 in 2012, and the said deposit was paid by the Defendant.

G. The Defendant’s registration of credit business was revoked on March 8, 2013.

[Ground of recognition] Unsatisfy, Gap evidence 1 through 7, 25, 26, Eul evidence 1 and 2 (including branch numbers), the purport of the whole pleadings

2. Grounds for the claim;

A. Grounds for a principal lawsuit and a counterclaim

1) The transfer of this case after the extinction of the principal and interest of each of the secured claims in the instant case

The Plaintiff was notified of the transfer of this case on the claim already extinguished because the principal and interest of each of the instant collateral security claims against Nonparty 3 was fully repaid, and thus, the transfer of this case is null and void. Accordingly, the Defendant is obliged to implement the procedure for registration cancellation of each of the instant collateral security registrations to the Plaintiff according to the right to claim for exclusion from

2) Offset with a claim for return of unjust enrichment and extinguishment of a secured obligation

A) The remaining collateral obligations of each of the instant registrations

① On May 19, 2010, the Defendant paid 270,000 won to Nonparty 3, who is a mortgagee of the right to collateral security registration of the instant case, and the Plaintiff’s creditor, by subrogation, KRW 7,7130,000,000,000,000,000,000 for introduction expenses to Nonparty 1, and KRW 4,50,000,000,000 for non-party 2, and for non-party 2,000,000,000 for certified judicial scrivener fees under the loan agreement of this case. The Plaintiff received only KRW 7,9,00,000,000 (= KRW 7,7130,000 + 2.777,00,000,000). Thus, even if the loan amount is actually included in the loan amount of KRW 2,50,000,00 for certified judicial scrivener fees and notarial expenses, the remainder of the loan amount.

② The agreement to pay damages for delay at the rate of 49% per annum on the overdue loan under the loan agreement of this case is scheduled to pay damages for delay. Since the expected damages are excessive, it is reasonable to reduce the amount by the rate of 36% per annum.

③ Therefore, even if the transfer of this case against the Defendant is valid, as of January 11, 2012, the date of repayment deposit, i) if the loan principal is deemed to be KRW 79.9 million, the remaining principal of the secured debt of each of the instant mortgages after appropriation for performance is deemed to be KRW 47,275,541, and ii) if the loan principal is deemed to be KRW 82.4 million, the remaining principal of the secured debt of each of the instant mortgages after appropriation for performance is deemed to be KRW 51,348,633.

B) Establishment of the Plaintiff’s claim for return of unjust enrichment against the Defendant

On September 5, 2006, the Plaintiff borrowed KRW 200 million from the Defendant. However, the Defendant unilaterally deducted KRW 230,030,000,000 from the above loan to the Plaintiff as a pre-paid interest, establishment expenses, and introduction expenses (including KRW 6 million for non-party 1) and paid KRW 12,420,000 (= KRW 58,50,000 paid to non-party 4 + KRW 65,70,000 paid to non-party 5), and the remainder of KRW 52,770,00 in the custody of the Defendant (hereinafter “instant deposit”). around March 207, the Plaintiff repaid the Defendant the above loan amount of KRW 15,50,000,000 out of KRW 20,000 to the Defendant.

Therefore, the Defendant is obligated to pay to the Plaintiff the sum of KRW 28,404,232, the sum of KRW 51,434,232, and delay damages for the storage of the instant money and the instant money calculated as of April 2, 2007, which settled the principal and interest of KRW 23,030,000,000, including the above introduction fees, and for the said loan, KRW 27,96,417, as well as interest for the instant money and the instant money and the instant money and the said money and interest for KRW 6,00,000,000,000,000,000 and KRW 21,996,417,000,000,000,000,000

C) The duty to cancel the registration of each of the instant collateral security and the duty to return unjust enrichment

① As of January 11, 2012, which can be seen as the set-off date, if (i) the interest from January 11, 2012, which is the set-off date for the Plaintiff’s unjust enrichment return claim against the Defendant and the interest from January 11, 2012, which is the set-off date for the said repayment deposit, against the Defendant, to the Plaintiff, KRW 47,275,541, which is the remainder of each of the instant secured claims against the Defendant, against the Plaintiff, the said secured claim is extinguished, and the Defendant’s unjust enrichment amount is KRW 16,46,540, and KRW 27,96,417, which is the set-off date for the said secured claim against the Defendant, and KRW 47,275,541, which is the set-off date for the Defendant’s respective secured claims against the Plaintiff, all of the Defendant’s secured claims are extinguished, and the Defendant’s unjust enrichment is paid to the Plaintiff.

② Therefore, the Defendant is obligated to complete the procedure for cancellation registration of each of the instant collateral security registrations, all of which are extinguished, and to pay the remainder of unjust enrichment and damages for delay.

B. Grounds for the counterclaim

The plaintiff is obligated to pay to the defendant the remaining debt of 80,929,890 won under the loan agreement of this case and damages for delay.

3. Determination

A. As to the assertion that each of the instant secured claims was transferred after the principal and interest of each of the instant secured claims was extinguished

The agreement on the assignment of claims is based on a scarcity and inscarcity, so if there is an agreement between the parties on the transfer of claims, it shall immediately take effect without any other special method and accordingly, the relevant claims shall be reverted to the assignee. However, Article 450(1) of the Civil Act provides that the transferor may not oppose the obligor without notifying the obligor of the fact of the assignment of claims in order to prevent the obligor’s double repayment risk, but this aims to protect the obligor’s interest. However, on May 19, 2010, the Plaintiff notified Nonparty 3 of the fact of the assignment of claims (Evidence No. 25, No. 25) to the Plaintiff on May 25, 2010, even if Nonparty 3 had notified Nonparty 3 of the fact of the assignment of claims (Evidence No. 3) before the repayment, and the Plaintiff had already concluded the transfer contract with Nonparty 3 to secure the above loan claims, and the Plaintiff’s assertion that the above loan was repaid to Nonparty 371,71,000.

B. Whether the remaining secured obligation and the claim for return of unjust enrichment are established

1) Determination on the balance of the secured debt registration of each case

A) Comprehensively taking into account the evidence mentioned above and the purport of the entire statements and arguments in Eul evidence Nos. 3 through 5, 8, and 13 (including branch numbers), the defendant, on May 19, 2010, prepared a loan to the plaintiff and the plaintiff's non-party 3 to repay the above loan amount, and entered into the loan agreement of this case with the non-party 3 to secure the defendant's above loan amount on the same day, and received the transfer registration of each of the mortgage in this case on the ground of transfer of the above confirmed loan amount on the 20th of the same month. The plaintiff entered into the loan contract of this case with the defendant on May 19, 2010, entered into the above loan of this case with the defendant as "the receipt of the above loan amount of KRW 90 million" and issued a receipt to the defendant that received the above amount of KRW 90 million on the pretext of the loan from the defendant, and all of them are found to have been paid to the plaintiff under the loan contract of this case.

Meanwhile, Article 5(2) of the former Enforcement Decree of the Act on the Registration of Credit Business, etc. and Protection of Finance Users (amended by Presidential Decree No. 2298, Jul. 21, 2010) amended the upper limit of interest rate from 49% per annum to 44% per annum, but Article 2 of the Addenda of the same Enforcement Decree provides that the above amendment provision applies from loan agreements concluded or renewed after the enforcement date of the above Enforcement Decree (amended by Presidential Decree No. 2291, Jul. 21, 2010). Article 5(2) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 22991, Jun. 27, 2011) that the upper limit of interest rate was 44% per annum to 39% per annum, but the above amendment provision also applies from loan agreements concluded or renewed after the enforcement date of the above Enforcement Decree (amended by Presidential Decree No. 22501, Jun. 27, 2011).

The interest rate of the principal on June 18, 201 2,70,700 2,750,000 2,751,780 2,751,780 2,780,780,000 90,00 51,780 2,840,660, 660, 360, 360, 360, 2064, 60, 205, 306, 60, 205, 206, 40, 306, 40, 205, 206, 306, 205, 206, 206, 30, 700, 700, 000, 000, 192, 327, 304, 205, 206, 2004

B) As seen earlier, the Plaintiff: (a) was a person who introduced and received the Defendant’s loan; (b) the Defendant had the Plaintiff offer and offer the loan to the Plaintiff; and (c) the Plaintiff paid the loan principal under the loan agreement with the Defendant despite the absence of an agreement to pay expenses for certified judicial scrivener; (d) the Plaintiff asserted that the loan principal under the loan agreement with the Defendant was KRW 90 million less KRW 10,900,000,000,000,000,000 for the introduction of the loan and the fees for certified judicial scrivener, etc.; and (e) the Plaintiff’s assertion that the loan principal amount under the loan agreement with the Defendant was 70,000,000,000,000,000,000,000,000,000 won were 1 through 10,0000,0000 won; and (e) the Plaintiff did not accept the loan principal amount under the loan agreement with Nonparty 1 and Nonparty 2, which was directly paid to Nonparty 1 and Nonparty 2.

C) In addition, the Plaintiff asserts that the rate of delay damages from the following day should be limited to 30% per annum under the Interest Limitation Act on March 8, 2013, since the Plaintiff’s provision on the rate of delay damages under the loan agreement in this case’s scheduled amount of damages is unilaterally disadvantageous to the Plaintiff, the borrower, and the maximum interest rate under the Credit Business Act has been reduced, etc., in light of the aforementioned various circumstances, and thus, the interest rate on delay damages from the following day should be reduced to 36% per annum. Thus, it is difficult to conclude that the above rate of delay damages from the following day should be unfairly high. According to Article 13(2) of the Credit Business Act, even if the registration of credit business was revoked pursuant to Article 14(1) of the same Act, the Plaintiff’s above assertion is without merit.

2) Determination as to whether the Plaintiff’s unjust enrichment return claim against the Defendant exists

In full view of the statements and the purport of evidence No. 1-1, No. 2, No. 9, No. 11, and No. 12 of the evidence No. 1-2, and the whole pleadings, the Seoul Central District Court No. 2005, Nov. 8, 2005, No. 38684, Nov. 3, 2006, and No. 2006, No. 44 of the same court at the request of Nonparty 5, and each of the real estate of this case was decided to commence compulsory auction. The defendant borrowed some funds from Nonparty 7 on September 4, 2006, and lent KRW 200,000 to the plaintiff on the provisional seizure No. 30,000,000 won, and it is difficult for the plaintiff to find that the above provisional seizure No. 2,70,000,000 won, which was the provisional seizure No. 570,000,000 won.

C. Sub-decision

In the event that a debtor claims the implementation of the procedure for registration of cancellation of establishment of a mortgage on condition that the secured debt was fully repaid or a part of the secured debt remains, but there is a difference in opinion about the scope of the secured debt in the case where the whole amount is not extinguished or the amount to be repaid is insufficient to extinguish only, the purport of seeking cancellation of the registration on condition that the remaining debt is repaid. In this case, as a lawsuit for future performance, it is necessary to claim cancellation of registration of establishment of a mortgage in advance (see Supreme Court Decisions 95Da9310, Feb. 23, 1996; 96Da33938, Nov. 12, 1996, etc.). Thus, barring any special circumstance, it is reasonable to interpret that among the plaintiff's claims in this case, the claims in this case, the purport of seeking cancellation of registration of establishment of a mortgage on condition that the remaining debt is repaid, and as long as the defendant asserted about the scope of the secured debt, the plaintiff's claim as the plaintiff can be seen as the necessity to claim cancellation of the remaining debt in advance loan 90.

Therefore, the Defendant is obligated to pay from the Plaintiff the amount of KRW 80,929,890 for the remainder of the secured obligation under the loan for consumption agreement of this case and damages for delay calculated by the rate of 49% per annum, which is the agreed interest rate from January 12, 2012, which is the date of the deposit for payment, to the date of full payment, and to the date of full payment. The Defendant is obligated to execute the procedure for cancellation registration of each of the instant collateral security registration, and the Plaintiff is obliged to pay to the Defendant the amount of KRW 80,929,890 as well as the damages for delay calculated by the above rate of 49% per annum from January 12, 2012

4. Conclusion

Therefore, the plaintiff's claim of the principal lawsuit shall be accepted within the extent of the above recognition, and the remainder of the principal lawsuit and the counterclaim shall be dismissed as without merit, and the defendant's counterclaim shall be accepted as reasonable, and the judgment of the court of first instance shall be modified as above. It is so decided as per Disposition.

[Attachment Form Omission of Indication of Real Estate]

Judge 50, 000,000,000

1) Any of the following credit service providers, etc. (including their successors, if a credit service provider, etc. is an individual) shall be deemed a credit service provider, etc. to the extent that the transaction under the loan agreement entered into by the credit service provider, etc. is terminated;