2016 Gohap680 Loans

A

Attorney Park Jae-ho, Counsel for the defendant

1. B

2. C.

3. D;

October 26, 2016

November 23, 2016

1. The Defendants jointly and severally pay to the Plaintiff 210,000,000 won with 25% interest per annum from December 24, 2010 to the day of full payment.

2. The costs of lawsuit are assessed against the Defendants.

3. Paragraph 1 can be provisionally executed.

The same shall apply to the order.

1. Basic facts

A. The fact that Defendant B borrowed KRW 210,000,000 (hereinafter “the instant loan”) on March 12, 2010 as “interest” from the Plaintiff on March 12, 201: 3% per month; 6 months from the date of borrowing; and 210,000,000 (hereinafter “the instant loan”).

B. The loan certificate prepared at the time of the above loan (hereinafter "the loan certificate in this case") includes the name of Defendant D and C as the surety and the obligor jointly and severally liable. The name of Defendant D and the seal of Defendant C are affixed to the name of Defendant D, and the seal of Defendant C is affixed to the name of Defendant C. Meanwhile, Defendant D is the son of Defendant B, and Defendant C is the son of Defendant B (the purport of the whole pleadings and the purport of the pleadings). The Plaintiff received dividends of KRW 1,566,418 on December 23, 2010 from the auction procedure (U.S. District Court) for the real estate held by Defendant B1 as security at the time of the loan in this case and appropriated it to the interest of the loan in this case. The purport of the entire pleadings is without any dispute or all of the arguments. The purport of subparagraph 1 is as follows.

2. Determination as to the claim against the defendant B

According to the above facts, Defendant B is obligated to pay the Plaintiff the loan amount of KRW 210,000,000 and interest or delay damages thereon.

3. Determination as to the claim against Defendant D and C

A. Defendant D and C’s assertion

Defendant D and C did not affix a seal to the loan certificate of this case and did not consent to joint and several sureties. Even if the above Defendants’ joint and several sureties liability for the loan of this case was incurred, the validity of the above joint and several sureties was extinguished as the Defendant B additionally borrowed money from the Plaintiff and prepared a separate loan certificate, and provided additional security.

B. Determination

1) In full view of the following facts and circumstances acknowledged by the purport of each entry and pleading as follows, Gap evidence Nos. 1, 2, and 3-1 through 5, it is reasonable to deem that defendant D and Eul granted the defendant Eul the authority to act on behalf of the defendant for the joint and several surety for the loan of this case).

① Although Defendant D was unaware of the instant loan funds or joint and several sureties therefor, he stated that he lent his name for the business promoted by Defendant B, his father, and Defendant C also stated that he provided his seal impression and a certificate of personal seal impression to Defendant B in relation to the loan.

② The instant loan certificate states that, in order to guarantee the debt of the instant loan, three parcels of land, H in Ulsan-gun, Ulsan-gun, and one parcel of land and buildings owned by Defendant C, as collateral. The instant loan certificate was prepared on March 16, 2010, around the time the loan certificate of this case was prepared, on March 16, 2010. The instant loan certificate was written with the name of Defendant D and C as “the debtor concurrently with the collateral collateral collateral collateral loan contract,” and each of the names of Defendant D and C affixed with the seal affixed thereto.

③ The above contract to establish a collateral security was prepared at the office of the competent judicial scrivener, and on March 16, 2010, the date of the preparation of the above contract, the establishment of each mortgage establishment registration of the above land or building was completed according to the above J’s application for registration (3). In that it is required to prove the proxy authority, such as the defendant D and C’s power of attorney, who is the person responsible for registration, in order to apply for registration by such agent, it seems that at the time of the above contract to establish a collateral security.

④ According to Article 49 of the Registration of Real Estate Act (amended by Act No. 10221, Mar. 3, 2010; Act No. 1021, Jan. 1, 2011; Act No. 10220, Jan. 1, 201) which was enforced at the time of the relevant contract to collateral security, an agent (referring to an attorney-at-law or a certified judicial scrivener) of the person liable for registration may file an application for registration by the method of verifying whether the person liable for registration is the person liable for registration on the basis of a resident registration certificate, etc., and submitting a document to verify the identity of the person liable for registration, accompanied by a copy of the relevant certificate, and the document to verify the completion of the agreement

2) Furthermore, according to the statements in the Evidence of Evidence Nos. 1, 1, 3, 4, and 6 as to whether Defendant D and C’s joint and several liability for the instant loan has ceased ex post facto, Defendant B, around June 13, 201, borrowed money additionally from the Plaintiff and prepared a new loan certificate in combination with the existing loan amount. Although it is recognized that the land owned by the Plaintiff was provided as security to the Plaintiff as a shareholder, the above facts alone are insufficient to recognize that the liability for the Defendant D and C’s joint and several liability for the instant loan has ceased ex post facto, and there is no other evidence to prove otherwise.

4. Conclusion

Therefore, the Defendants are jointly and severally liable to pay to the Plaintiff the interest on the instant loan amount of KRW 210,00,000 and damages for delay calculated at the rate of 25% per annum, which is within the limit of the agreed interest rate, from December 24, 2010 to the date of full payment, following the final appropriation of the interest on the instant loan, as sought by the Plaintiff. Accordingly, the Plaintiff’s claim against the Defendants is justified, and it is so decided as per Disposition.

The presiding judge, public judicial examiner;

Judges Kim Gin-dong

Judges Kim Yong-young

1) It appears that F, G, and Defendant B were jointly owned.

2) Even if Defendant B did not have such power of representation as above, Defendant D lent its name to Defendant B, and was avoided.

Da C also provides Defendant B with his seal imprint and seal imprint with respect to the loan, and thus Defendant B is the basic right of attorney.

In light of the relationship between the Defendants and the circumstances mentioned above, the Plaintiff, as the Plaintiff, shall be deemed to have raised an objection to the instant loan.

As to the joint and several liability of Defendant B, it is deemed that there was a justifiable reason to believe that Defendant D and C had the authority to act on behalf of Defendant D and C.

reasonable.

3) As to the above land or building, the registration of the Ulsan District Court on March 16, 2010 and the same day mortgage contract was concluded under the Act No. 22627 as to the same land or building.

The registration of the establishment of a neighboring mortgage in the name of the plaintiff et al. was completed.