2013ver 9538 Loans

A

B

December 4, 2013

December 26, 2013

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The defendant shall pay to the plaintiff 40,000,000 won with 20% interest per annum from the day following the delivery of a copy of the complaint of this case to the day of complete payment.

1. Basic facts

A. On October 15, 2009, the Defendant entered into a sales contract to purchase KRW 380,000,000 (hereinafter “the instant forest”) forest land D 8,980 square meters in Chungcheongnam-gun, Chungcheongnam-do (hereinafter “the instant forest”) with C, and completed the registration of ownership transfer on December 9, 2009 after paying the purchase price.

B. Meanwhile, on November 20, 2009, the Plaintiff remitted gold KRW 40,000,000 to E. On the other hand, on the 27th of the same month, E re-transfered the above KRW 40,000 to the Defendant’s account on the 27th of the same month, and the Defendant used the above KRW 40,000,000 as part of the intermediate payment for purchasing the forest of this case.

[Grounds for recognition] The descriptions of Gap evidence 1, 2, Eul evidence 1, and the purport of the whole pleadings

2. The primary argument and judgment

A. The assertion

Although the Plaintiff was recommended to make an investment in the instant forest jointly with the Defendant and remitted KRW 40,000,000 to the E account designated by the Defendant, the Defendant is obligated to return the said investment amount to the Plaintiff, since the Defendant entered into a joint purchase agreement and completed the registration of ownership transfer in its sole name.

B. Determination

The plaintiff's assertion is without merit, since there is no evidence to support that the plaintiff and the defendant jointly purchased the forest of this case and agreed to complete the registration of transfer of ownership in the joint name.

3. Preliminary argument and judgment

A. The assertion

Even if the Defendant did not receive the above 40,000,000 won from the Plaintiff, it is clear that the Defendant used the above 40,000,000 won, which is the Plaintiff’s money, in purchasing the forest of this case, and thus, it should return the said money as unjust enrichment.

B. Determination

However, even if the plaintiff used 40,000,000 won for the purchase of the forest of this case by the defendant, such circumstance alone does not necessarily mean that the defendant obtained a benefit without any legal ground, and there is no other evidence to acknowledge it. Rather, according to the witness E's testimony, E stated that "the money received regardless of the purchase of the forest of this case," is "the money received from the plaintiff," although it is well known that "E would receive a transfer of 40,000,000 won from the plaintiff." Meanwhile, E decided to jointly purchase the forest of this case with the defendant and F, because there is a lack of intermediate payment to purchase the forest of this case, so it cannot be acknowledged that "the above money was remitted to the defendant upon receiving a request from the defendant for transfer of the above 40,000,000 won from the F, and it cannot be viewed that the above money was remitted from the defendant without any legal ground for the transfer of the money between the plaintiff and the E, and the defendant cannot be viewed as a transfer of the above money.

4. Conclusion

Thus, the plaintiff's claim of this case is dismissed as it is without merit.

Judges Cho Jin-han