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(영문) 서울고등법원 2016.01.27 2014나38960
약정금
Text

1. The plaintiff's appeal and the conjunctive claim added in the trial are all dismissed.

2. After an appeal is filed.

Reasons

1. The parties' assertion

A. (1) The Defendant agreed to borrow KRW 160 million from the Plaintiff around September 11, 2012, along with the co-defendant B of the lower judgment (hereinafter “B”), to return the principal and interest KRW 50 million to the Plaintiff by April 2013.

(2) Not household affairs.

Even if the defendant, in collusion with B, borrowed the purchase fund of the land scheduled for development from the plaintiff although he did not intend to purchase the land scheduled for development, he/she acquired it as collateral and subsequently fraudulently acquired it from the plaintiff with the purport that he/she would return the total of KRW 210 million including the interest of KRW 50 million within 6 months in high seas and the interest of KRW 50 million.

(3) Therefore, the Defendant is jointly and severally liable with B to pay to the Plaintiff KRW 210 million and delay damages therefor.

B. Defendant (1) did not borrow KRW 160 million from the Plaintiff, and there was no agreement to return KRW 210 million to the Plaintiff by April 2013.

(2) In addition, as alleged by the Plaintiff, the Defendant conspired with B to acquire 160 million won from the Plaintiff.

(3) Therefore, the Plaintiff’s claim of this case is without merit.

2. Determination

A. Even based on all evidence submitted by the Plaintiff to determine the primary claim, it is insufficient to recognize that the Defendant borrowed KRW 160 million from the Plaintiff, and there is no other evidence to acknowledge it.

Rather, according to the statements in Gap evidence Nos. 1, 2, 8, 10 and Eul evidence Nos. 4 (including branch numbers in the case of additional numbers), the defendant introduced Eul to the plaintiff, and accordingly, the plaintiff lent KRW 160 million to B on September 11, 2012, and Eul borrowed the above money from the plaintiff, and on October 24, 2012, after borrowing the above money from the plaintiff, completed the registration of transfer of ownership with regard to KRW 20 million with regard to the amount of 160 million with the principal and KRW 50 million with interest.

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