Seoul Central Court 2012 Gohap53969 ( October 14, 2013)

The defendant is the debtor of the loan of this case.

Since the defendant is the formal debtor of the loan of this case at the same time, the defendant's claim for reimbursement against the defendant of the delinquent taxpayer is recognized.

Article 406 of the Civil Act

Seoul High Court 2013Na2012097

Korea

Bosa

Seoul Central District Court 2012 Gohap533969

April 17, 2014

May 15, 2014

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

1. Purport of claim

The defendant shall pay to the plaintiff 20% interest per annum from the day after the delivery of a copy of the complaint of this case to the day of complete payment.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Basic facts

A. Defendant and KimA are married, and KimB, KimCC, KimD, and KimE are children.

B. The Seoul OOOO-dong 1554-4 large 544.7 square meters and the three-story buildings on its ground (hereinafter referred to as the "Gu building") were owned by KimA. On June 16, 2003, KimA donated 1/4 shares, 1/10 shares, and 1/10 shares to the Defendant who is the wife, and 4 co-ownership were owned by the Gu building was owned by KimA, but was removed on February 9, 2006 and removed on that 15th and 1554 OO-dong 1554 O-dong 3 underground floors (hereinafter referred to as the "the building of this case"). The registration of ownership preservation was completed in the name of KimD on December 4, 2008.

C. Meanwhile, on November 9, 2005, the defendant entered into a loan agreement (hereinafter "the loan agreement of this case") with an O bank (hereinafter "O bank") to obtain a loan of KRW 00 million under its name, and completed the registration of the establishment of the mortgage of this case as to the debtor, the mortgagee, the OO bank, the maximum debt amount, and the registration of the establishment of the mortgage of this case (hereinafter "O apartment of this case") with respect to the debtor, the O apartment of this case as to the 1685-3 Oone, Oone, 1685, 250, 285, 200, 000, 2000, 000,000 won as to the O apartment of this case (hereinafter "O apartment of this case"), and the 280,000,000 won as to the O apartment of this case (hereinafter "the maximum debt amount of this case"), and completed the registration of the establishment of the mortgage of this case as to each of this case.

D. As the repayment of the Defendant’s above loan obligation was delayed and overdue interest occurred, the Obank applied for a voluntary auction on September 19, 201 by the Seoul Central District Court 20OOOOO on the instant real estate, and the auction procedure was commenced on September 19, 201, and the proceeds were sold at OO won on December 2, 201.

E. The plaintiff has a taxation claim against KimD in total as shown in the attached sheet of default, and KimD is currently insolvent.

[Reasons for Recognition] Facts without dispute, Gap evidence 1 through 5, Eul evidence 4, 6, Eul evidence 12-1, 2, and Eul evidence 16, the purport of the whole pleadings

2. Determination as to the cause of action

According to the above facts, KimD is liable to pay OD and its delay damages to the plaintiff, unless there are special circumstances, to the defendant as the defendant's OD as a surety for the instant loan contract and collateral security contract for the defendant's OD bank. The plaintiff has an OD's claim against the defendant in the public sale procedure for the real estate of this case. KimD currently has an OD's claim against OD, and Kim Dong has not exercised the above claim against the defendant as it is insolvent. Thus, as the plaintiff seeks by subrogation of KimD in order to preserve the above claim, the defendant is liable to pay OD and its delay damages to the plaintiff.

3. Defendant’s assertion and judgment

A. As to the assertion that KimD does not have a claim for reimbursement against the defendant because it is the actual debtor of the loan contract of this case

1) The defendant's assertion

Although the debtor of the loan contract of this case is the defendant, it was loaned by KimD to raise funds necessary to cancel the right to collateral security of the defendant and KimA established as a sales price for the building of this case in order to purchase the old building from KimA and remove it, and to construct the new building of this case, and since the defendant and KimD are in an internal relationship between the defendant and KimD, there is no claim for indemnity against the defendant of KimD, the claim for indemnity against the defendant does not exist.

2) Determination

In full view of the facts as follows: (a) No. 2, No. 4, and No. 10; (b) No. 12-2, No. 13, No. 14; and (c) No. 15-1, No. 18; and (b) No. 2, No. 18; and (c) as a result of reply to each of the orders to submit financial transaction information dated 20, No. 30, Jun. 30, 2003; (b) No. 2, No. 20144; (c) No. 206, Nov. 1, 2004; and (d) No. 2, No. 20144; and (c) No. 250, Jun. 30, 2003; and (d) No. 20144, Jun. 1, 2004; and (e) No. 2015, Jun. 7, 2005.

However, in light of the following facts: (a) No. 2, No. 3, and No. 2, No. 6, and No. 10, and No. 2, and No. 10, and No. 2, and No. 1, the Defendant had been aware of the facts that the Defendant had been using the loan of No. 2, No. 3, and No. 3, and no. 2, the Defendant had been using the loan of No. 1, and no. 9, the Defendant had been using the loan of No. 2, for the following reasons: (b) it was hard to recognize that the Defendant had been using the loan of No. 2, No. 3, and no. 9, the Defendant had been using the loan of No. 2, and there were no other reasons to recognize that the Defendant had been using the loan of No. 2, the Defendant had been using the loan of No. 1, 300,000,000,000,000).

B. As to the argument that the defendant's claims for reimbursement against the defendant against KimD are set off with the defendant's claims, such as the defendant's loans against KimD

1) The defendant's assertion

In domestic affairs, even if the debtor under the loan contract of this case is the defendant, the defendant has the amount of KRW 80,517,808, and KRW 80,000,000, and KRW 226,306,965, and KRW 27,00,000, and KRW 833,824,773, and even if it is offset against the claim for indemnity of KimD as of November 9, 2005, the claim for indemnity is extinguished.

2) Determination

As seen above, insofar as it is difficult to view that a sales contract for the old building was concluded between KimD and the defendant or KimA, the defendant's assertion that the defendant has ① KRW 500,517,808 against KimD as of November 9, 2005 is difficult to accept.

According to Eul evidence Nos. 1, 2, and 7-1, 7-2, each of the following facts: although the defendant remitted OD to Song on March 28, 2008, the defendant transferred OD on the same day, the sum of OO and O00 won out of the loans (Account Number O-O-O-O-O-O-OOOO-O-OO-O-O-O-O) to the defendant's O bank account and repaid OD, the defendant withdrawn 30,000,000 won on the same day after he deposited OD as the client, it is difficult to view that the defendant did not have any provision on interest, maturity period, etc. between the defendant and the defendant, and there is no other evidence to prove that the above OD was remitted to the defendant before the above Kim-O-O-O-O-O-O-OO-OO-OO-OO-OOO-OO-OOO-OO-OO-O.

C. Sub-committee

Therefore, the defendant is obligated to pay to the plaintiff money calculated at the rate of 20% per annum from October 23, 2012 to the day of full payment, which is clear that the delivery day of a copy of the complaint of this case to the plaintiff as the plaintiff seeks by subrogation of KimD.

4. Conclusion

The plaintiff's claim of this case shall be quoted on the grounds of its reasoning. The judgment of the court of first instance shall conclude this conclusion.

As above, the defendant's appeal is justifiable. The defendant's appeal is dismissed as it is without merit. It is so ordered as per Disposition.

partnership.