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1. The plaintiff's claim is dismissed.
2. The costs of lawsuit shall be borne by the Plaintiff.
Reasons
1. The assertion and judgment
A. The plaintiff's assertion that C, in opening a restaurant with the trade name "D", the plaintiff lent 35.9 million won as facility funds to the defendant without fixing the interest or the due date for payment. Thus, the defendant is obligated to pay the above loan 35.9 million won and the damages for delay to the plaintiff.
B. Determination 1) Since the act of paying money to another person may be conducted based on various causes, such as loan for consumption, investment, and donation, it cannot be readily concluded that there was an agreement between the parties to the loan for consumption only on the sole basis of the fact that money was given and received between the parties. Moreover, even if there is no dispute as to the fact that money was given and received between the parties, when the Defendant contests the Plaintiff’s assertion that it was given, the Plaintiff bears the burden of proving that it was given to the Plaintiff (see, e.g., Supreme Court Decision 2017Da37324, Jan. 24, 2018). (See, e.g., Supreme Court Decision 201Da37324, Jul. 26, 2017).
8.12.10 million won, per year;
9. The fact that a total of KRW 35.9 million has been remitted to each account opened in the name of the defendant for a bank may be recognized.
However, in light of the following circumstances recognized by each of the above evidence, Gap evidence Nos. 7, Eul evidence Nos. 3 and 4, and the purport of the whole pleadings, it is insufficient to recognize that the above facts of recognition and each of the evidence Nos. 1 and 2, which the plaintiff remitted to the defendant, are loans to the defendant, and there is no other evidence to prove otherwise.
① As to the above KRW 35.9 million remitted to the Defendant, the Plaintiff did not prepare a disposal document, such as a loan certificate stating the period of repayment, interest, etc. with the Defendant.
② On March 10, 2019, the Plaintiff issued a disposition of Defendant and D (hereinafter “instant restaurant”).