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(영문) 광주고등법원 2016.08.12 2016나10550
청구이의
Text

1. The plaintiff's appeal is dismissed.

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

The purport of the claim and appeal is the purport of the appeal.

Reasons

1. The reasoning for this part of the facts admitted by the court is the same as that of the judgment of the court of first instance, and thus, this part is cited in accordance with the main sentence of Article 420 of the Civil Procedure Act.

2. Judgment on the plaintiff's claim

A. On the grounds delineated below the gist of the Plaintiff’s assertion, compulsory execution based on the promissory note of this case should not be permitted.

(1) The notarial deed of the Promissory Notes was prepared in preparation for the enforcement of J regardless of the Defendant’s investment or loan to the Plaintiff’s side.

(2) On November 7, 2014, the Plaintiff and the Defendant prepared a notarial deed of a monetary loan agreement for consumption (hereinafter “notarial deed of a monetary loan for consumption”) stating that the principal of the loan is “40 million won,” “12% per annum,” and “the maturity date is November 21, 2014,” and decided to invalidate the notarial deed of a promissory note in the instant case.

(3) Even if the facts alleged earlier are not recognized, the claim that caused the Notarial Deed of the Promissory Notes was already extinguished due to repayment, etc.

B. On the grounds delineated below, we cannot accept all the Plaintiff’s assertion.

(1) As to whether the notarial deed of the Promissory Notes in this case was prepared falsely, the witness of the first instance trial witness D is admissible as evidence that conforms to the plaintiff's assertion that the notarial deed of the Promissory Notes in this case was prepared falsely.

However, when comprehensively taking into account the following circumstances, D’s testimony suitable for the Plaintiff’s assertion cannot be believed to have a real meaning, and there is no other evidence to prove the Plaintiff’s assertion.

(A) According to the purport of the Plaintiff’s evidence No. 3 and the entire pleadings, the Plaintiff and D’s letter of payment stating that the Defendant will repay the remainder of KRW 500 million (interest separate) to September 30, 2014, on the premise of post settlement on September 10, 2014, which was one month prior to the preparation of the instant promissory note No. 3. (1).

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