2014 Gohap82 Loans

A

Law Firm Gyeong-man, Counsel for the defendant-appellant

Attorney Lee Young-mo

Attorney Kang Han-soo et al.

1. B

2. C.

[Judgment of the court below]

October 16, 2014

November 13, 2014

1. The instant lawsuit shall be dismissed.

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

The Defendants are jointly and severally liable to the Plaintiff

(a) 27.6% per annum from November 25, 2011 to June 7, 2012; 26.6% per annum from the next day to July 5, 2012; and 25.6% per annum from the next day to the date of full payment;

(b) 15% interest per annum on KRW 864,450,000 from November 25, 201 to the date of full payment;

sub-payment.

1. The parties' assertion

A. The Plaintiff asserts that, even though the Defendants borrowed 5 million Chinese currency from the Plaintiff during the period from May 24, 2009 to November 25, 2011, the Defendants did not repay the said bills. The Defendants asserted that the Defendants are liable to pay to the Plaintiff the principal amount of 5 million won converted at the exchange rate of October 7, 2014 near the date of the closing of the argument in this case into the exchange rate of 864,450,000 won, as well as the agreed interest and penalty.

B. On this issue, the Defendants asserted that the instant lawsuit is unlawful, since they are not recognized as international jurisdiction of the Korean court.

2. Whether the international jurisdiction of the court of the Republic of Korea is recognized

A. Criteria for determining international jurisdiction

Article 2 (1) of the Private International Act provides that "where a party to a lawsuit or a case in dispute is substantially related to the Republic of Korea, the court shall have the international jurisdiction in accordance with reasonable principles consistent with the ideology of allocation of international jurisdiction in determining the existence or absence of substantial relation." In addition, Article 2 (2) provides that "the court shall consider the jurisdiction provisions of domestic law in determining the existence or absence of international jurisdiction, and shall fully consider the special nature of international jurisdiction in light of the purport of paragraph (1)." Thus, international jurisdiction shall be determined in accordance with the basic ideology of ensuring the appropriateness, appropriateness, prompt and economy between the parties to the lawsuit as well as personal interests, such as equity, convenience, and predictability, as well as the appropriateness, prompt, efficient, and effectiveness of the judgment. Specifically, the issue of whether it is necessary to protect any of these diverse interests shall be determined based on the objective criteria of suspension of law and substantial relation between the parties to the lawsuit and the case in dispute (see, e.g., Supreme Court Decisions 2006Da130515, May 29, 2015).

(b) Fact of recognition;

The following facts are not disputed between the parties, or acknowledged by considering the whole purport of the pleadings in each entry in Gap evidence of 1 to 28, and Eul evidence of 1 to 4 (including each number):

1) The Plaintiff is a person of Chinese nationality residing in the city of Yancheon-si in China, and is conducting the bond business in China.

2) The Defendants are married couple, who are people of Chinese nationality and have been engaged in real estate development projects, and currently reside in Jeju-do.

3) The Defendants borrowed 5 million won from the Plaintiff on four occasions from May 24, 2009 to November 25, 201 in the course of implementing a real estate development project.

4) Defendant B owned land E and G D 4, G 43.0D vehicles, etc. in Jeju Island, and the Plaintiff received the Jeju District Court Decision 2013Kahap457, 2014Kahap57, 2014Kahap83, 2013Kadan273, 2014Kadan4455 with respect to the real estate and automobiles owned by Defendant B, and the provisional attachment order for each of the vehicles listed in the main district court No. 2013Kadan273, 2014Kadan455.

C. Determination

(i) substantial relationship between the parties and the Republic of Korea;

As both the Plaintiff and the Defendants are Chinese nationals, the Plaintiff is currently residing in China, and the Defendants have been residing in China up to the recent years, and there seems to be a documentary evidence, certification, and financial data related to the subject of loan and whether the Plaintiff and the Defendants are repaid, etc., which are disputed, in lieu of China where a loan contract for consumption was concluded and repaid. Therefore, it seems that the court in the Republic of Korea does not seem convenient for the parties, and furthermore, it was difficult to expect that the Plaintiff would file a lawsuit with the Korean court in relation to the above loan for money in an area unrelated to the Republic of Korea from the standpoint of the Defendants.

The plaintiff asserts that the defendants are subject to prohibition of departure in China, and that they moved to Jeju-do after disposing of all property in China and ordering the name, and that they purchased real estate and vehicles in Jeju-do. In addition, the plaintiff argued that the defendant Eul had domicile in Jeju-do in the Republic of Korea as the intention not to lead a social life in China, and that the defendant Eul owned the buildings E E in Jeju-do and G Dricker 43.0D vehicles in Jeju-do. However, considering the overall purport of argument in the statement in Gap evidence No. 6, it can be acknowledged that the main issue of prohibition of departure in defendant Eul's China is a civil case that has not been deliberated in China. In light of the above circumstances and the remaining evidence submitted by the plaintiff alone, it is difficult to conclude that the defendants have no substantial relation between the defendants and the Republic of Korea. Furthermore, it is also difficult to recognize that the defendants have no real relation to the real estate and movable property in Korea.

(ii) substantial relationship between the dispute and Korea;

The Plaintiff is a person operating a bond business in the Chinese Jin-si. The Defendants seem to have borrowed a large amount of money from the Plaintiff on several occasions while running a real estate development project in the Chinese Mdong Joint and several occasions. As such, insofar as the conclusion of a loan for consumption, receipt of loans, and partial repayment of loans was made in an area unrelated to the Republic of Korea, which is a legal suspension, there is no substantial relation between this case and the Republic of Korea.

In addition, in light of the aforementioned facts and the purport of the entire pleadings, the Plaintiff and the Defendants appear to not only to lend 5 million won over four times from May 24, 2009 to November 25, 201, which are at issue in the instant case, but also to have a large amount of money transaction over several times, and it seems that it would be difficult for the Plaintiff and the Defendants to collect evidence in the Republic of Korea due to the fact that the documentary evidence or certification on the issues mainly disputed by the Plaintiff and the Defendants is in China. Therefore, it is difficult for the Korean court to promptly and efficiently proceed with the instant case.

Although Defendant B owns real estate, etc. in the Republic of Korea (the same shall apply as seen earlier, if Defendant C does not own real estate, etc. in the Republic of Korea), the Plaintiff’s assertion alone does not seem to have any special need to recognize international jurisdiction in a court of the Republic of Korea for securing effectiveness of the judgment, as it is difficult to readily conclude that the Defendants have no property in China. In addition, the Plaintiff may enforce compulsory execution on the real estate, etc. on Defendant B, after obtaining a judgment of execution under Article 26 of the Civil Execution Act, after having received a judgment of execution against the Defendants in a foreign country. In light of this, it does not seem to be necessary to recognize international jurisdiction over

3) Consideration of domestic laws and regulations;

A) The Defendants mainly reside in China, and thus, they are not entitled to territorial jurisdiction as a general forum in the Korean court.1) Furthermore, Defendant B’s real estate registration injury address is indicated as the H building 1 in the Magyeong-gu, Masan-gu, Masan-gu, China.

B) The instant lawsuit is a lawsuit relating to property right, and thus, special adjudication is recognized in the Defendants’ residence pursuant to Article 8 of the Civil Procedure Act. However, as seen earlier, it is difficult to recognize that the Defendants have a residence only within Korea.

C) The Plaintiff’s principal place of residence is the Chinese Jincheon-si, and in this case, the Plaintiff’s place of residence is the basis for the Plaintiff’s living, and the Plaintiff’s domicile is the Chinese Jin-si, which is the Plaintiff’s address. In this case, the Korean court does not have territorial jurisdiction as a special jurisdiction for the place

D) Since Defendant B owned real estate in the Republic of Korea, there is room for partial recognition of a special adjudication under Article 11 of the Civil Procedure Act with respect to the instant lawsuit in the Republic of Korea. However, as seen earlier, it is difficult to readily conclude that the Defendants’ property in China exists, as seen earlier, Defendant B’s real estate registration injury address is the H building 1 in the Magdong-gu in China, and Defendant B’s compulsory execution on the real estate in the Republic of Korea owned by Defendant B after obtaining a judgment of execution pursuant to Article 26 of the Civil Execution Act after having received a judgment of execution against the Defendants in a foreign country, it is possible to enforce compulsory execution on the real estate in the Republic of Korea owned by Defendant B. In this case, there is no substantial relation between the Republic of Korea and the Republic of

E) Since the provisional attachment jurisdiction of the location of the object of provisional attachment and the jurisdiction of the main subject matter of provisional attachment are quasi-classified and do not establish the jurisdiction of the main subject matter of provisional attachment, it does not necessarily create the jurisdiction of the Republic of Korea court just because the Plaintiff received the provisional attachment order on the real estate and motor vehicles in the Republic of

4)Consemy

Therefore, the lawsuit of this case is not recognized as international jurisdiction in the Korean court.

3. Conclusion

Thus, the lawsuit of this case is unlawful and dismissed.

The presiding judge, the private and private seat;

Judges Lee So-young

Judges Boh-hee

1) According to Article 5 of the Civil Procedure Act, if a person has an address, depending on whether the person has a separate residence or not.

A general forum is determined, and when interpreting it in accordance with reasonable principles consistent with the ideology of the allocation of international jurisdiction, the person is state in a foreign country.

If a lawsuit has been filed, the general forum shall accrue only to the foreign domicile regardless of whether the separate domicile exists in the Republic of Korea.

The territorial jurisdiction of the Republic of Korea shall be recognized, and the Republic of Korea shall also have a separate residence in the Republic of Korea, with a general forum.

There is no territorial jurisdiction (Article 5 of the Civil Procedure Act).(Article 5 of the Civil Procedure Act provides multiple general forums according to the address and residence of the person.

This is because it is not a provision that sets forth.