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1. The instant lawsuit shall be dismissed.
2. The costs of lawsuit shall be borne by the Plaintiff.
Reasons
1. Basic facts
A. On September 23, 2015 and February 19, 2016, the Plaintiff entered into a loan transaction agreement and lent KRW 40 million in total at the request of the Defendant’s spouse, who completed registration of credit business pursuant to Article 3 of the Credit Business Act.
B. Prior to the foregoing, the Defendant and D concluded a lease agreement with E on December 30, 2014, setting the deposit amount of KRW 168 million with respect to the F apartment G (hereinafter “F apartment”) in Bupyeong-gu Incheon, Bupyeong-gu, Incheon, and the term of lease from February 27, 2015 to February 26, 2017, and paid all the deposit amount around that time.
C. On September 23, 2015, D entered into an agreement on the assignment of claims with the Plaintiff to transfer KRW 50 million among the F apartment deposit refund claims with respect to F apartment to the Plaintiff for the purpose of securing the above loan obligation against the Plaintiff, and notified the Plaintiff of the purport thereof on October 7, 2015.
E sold F apartment to H on August 25, 2016, and H returned the deposit amount of KRW 168 million to the Defendant on December 22, 2016.
E. On September 6, 2014, the Defendant entered into a sales contract with the Uncheon-si I apartment J (hereinafter “I apartment”) and completed the registration of ownership transfer on February 6, 2017.
【Ground of recognition】 The fact that there is no dispute, entry of Gap's 1 through 7 (including each number, if any) and the purport of whole pleadings
2. Determination on the defense prior to the merits
A. The gist of the Plaintiff’s claim D, while delaying the Plaintiff’s repayment of the loan amounting to KRW 40 million, donated to the Defendant the amount of KRW 84 million, which is his/her share, by having the Defendant pay to all of the Defendant on December 22, 2016, in excess of the debt, the lease deposit amounting to KRW 168 million with respect to F apartment.
This is a fraudulent act against the plaintiff, who is a creditor, and the defendant's bad faith is presumed to be a beneficiary.
Therefore, the total amount of debt that D owes to the Plaintiff is within the scope of KRW 58,50,000 (the total of KRW 40,000,000 and overdue interest).