2019Da233263 Loans

A

Law Firm Sung (Law Firm Sung, Counsel for defendant-appellant)

[Defendant-Appellee]

B

Law Firm and person;

Attorney Noh Don-ro, the main owner of the Gu, the new type of ship, and the stuffing

Seoul Eastern District Court Decision 2018Na20462 Decided April 10, 2019

October 17, 2019

The part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the Seoul Eastern District Court.

The grounds of appeal are examined.

1. As to the grounds of appeal Nos. 1 and 2

According to the reasoning of the lower judgment, the lower court determined as follows: (a) around June 2011, the Plaintiff and the Defendant traded at a discount by the Plaintiff and the Defendant before making a loan pursuant to the First Promissory Notes; (b) there have been various transactions other than the Plaintiff at a long time; (c) exchange of KRW 33 million with the Plaintiff and the Defendant with the First Promissory Notes as collateral was made between the Plaintiff and the Defendant; and until that time, the Plaintiff and the Defendant did not have any special relationship or transaction; (c) the lease pursuant to the Second Promissory Notes was made by the substitution of the First Promissory Notes; and (d) the Defendant did not deny that the Defendant was responsible for the repayment of the loan pursuant to the Second Promissory Notes on or around February 2017, and did not deny that part of the loan was transferred to F; and (d) in light of the legal principles and records as seen earlier, the lower court did not err in its judgment by misapprehending the legal doctrine regarding the probative value or burden of proof.

2. As to the third ground for appeal

According to the reasoning of the judgment below, the court below rejected the defendant's defense that the defendant paid 28,00,000 won out of the above loans to the plaintiff, on the ground that there is no evidence to acknowledge it.

However, according to the records, the plaintiff, in the cause of a claim, delivered KRW 93,300,00 to the defendant as a loan by account transfer, and received KRW 45,00,000 as a loan under the second bill, but received KRW 28,90,000,00. The plaintiff claimed for the payment of KRW 49,90,000 as a loan by account transfer (= KRW 93,300,000) and KRW 17,00,000 as a loan under the second bill under the second bill (= KRW 45,000,000) and delayed payment of KRW 66,90,000 as a loan under the second bill.

According to such circumstances, the instant lawsuit was instituted simply by the account transfer and the claim for a loan under the Promissory Notes. The Plaintiff sought payment of KRW 17,00,000 and damages for delay due to the return of the loan pursuant to the Promissory Notes. However, the lower court ordered the Defendant to pay KRW 38,130,468 and damages for delay due to the return of the loan pursuant to the Promissory Notes beyond the scope claimed by the Plaintiff. In so doing, it erred by misapprehending the legal doctrine on the disposal right principle, thereby affecting the conclusion of the judgment. The allegation contained in the grounds of appeal on this point is with merit.

3. Conclusion

Therefore, the part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the lower court for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Supreme Court Decision 200

Justices Park Sang-ok

Justices Noh Jeong-hee

A person shall be appointed.