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(영문) 서울고등법원 2019.08.28 2019나2010451
양수금
Text

1. The plaintiff's appeal and the conjunctive claim added by this court are all dismissed.

2. After an appeal is filed.

Reasons

1. Summary of the parties' assertion

A. Plaintiff 1) The primary claim (A) C lent to the Defendant KRW 350 million on February 5, 2008, KRW 210 million on August 28, 2008, KRW 561 million on a total amount of KRW 561 million (hereinafter “the instant money”).

B) On August 14, 2017, C transferred to the Plaintiff the loan repayment claim amounting to KRW 280,50,000,000 among the instant money to KRW 280,050,000,000 to D, and notified the Defendant of the fact of the transfer of each claim. After that time, D transferred the said loan repayment claim to the Plaintiff on December 29, 2017, and notified the Defendant thereof at that time. (C) The Defendant is obligated to pay the Plaintiff the refund claim amounting to KRW 561,00,000,000 and damages for delay.

2) Preliminary claim (the instant claim for return of unjust enrichment, even if not recognized as a loan to the Defendant, the Defendant received the said money without any legal cause from C, and thus, is obliged to pay KRW 561 million to the Plaintiff who received the said claim for return of unjust enrichment in accordance with the legal doctrine of return of unjust enrichment, and the delay damages therefrom.

B. The Defendant, on May 24, 199, remitted KRW 50 million to the E’s account from May 24, 199, to C’s account, and from June 2007, lent KRW 1190 million to C.

The instant money claimed by the Plaintiff is limited to the money transferred from C to repayment of a part of the principal and interest that the Defendant lent to C, and the Defendant did not borrow or receive from C the instant money claimed by the Plaintiff without any legal ground.

2. Determination

A. The Plaintiff’s assertion that the Plaintiff lent money between the parties to the relevant legal doctrine, even if there is no dispute as to the fact that the said legal doctrine was given and received, has the burden of proof as to the fact of the lending.

In addition, Article 741 of the Civil Code is amended.

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