(영문) 창원지방법원 2016.11.01 2016가단4542

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(영문) 창원지방법원 2016.11.01 2016가단4542

대여금

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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 plaintiff asserts that he lent KRW 100,000,000 to the defendant (hereinafter "the loan of this case") and sought payment of KRW 100,000,000 of the loan principal and delay damages.

The Defendant: (1) The Defendant: (a) the instant loan was lent by an individual who is not the Plaintiff; and (2) even if the obligation to be borne by the Plaintiff is the obligation to the Plaintiff, the Defendant, including the amount of goods not repaid to the Plaintiff, shall settle the leased principal at KRW 540,00,000 by reducing and exempting part of the total amount of KRW 1.3 billion; and (b) made a notarial deed on January 20, 2014 for the payment of the loan amount; and (c) the Plaintiff’s claim seeking payment of KRW 100,000,000,000 separately, despite having written the notarial deed as above, cannot be complied with

2. Determination

A. With respect to the plaintiff's claim for the performance of the loan obligation of this case against the defendant, the defendant asserts that the lawsuit of this case brought by the plaintiff who is not a creditor of the loan of this case is unlawful. However, in the performance lawsuit, the plaintiff has standing to sue and the person who asserted as a performance obligor from the plaintiff has standing to sue, and thus, the existence of standing to sue is merely based on the plaintiff's claim, and it does not require the original defendant to be a person who is actually or is a performance obligor (see, e.g., Supreme Court Decision 94Da14797, Jun. 14, 1994). The defendant's main safety defense is without merit.

B. When the judgment on the cause of the claim was based on the respective statements in the Evidence Nos. 2 through 4 (including the serial number), the Plaintiff transferred KRW 100,000 from the deposit account in the name of the Defendant on January 8, 2013 to the Defendant’s deposit account on January 8, 2013, and the Plaintiff owned the Defendant based on the instant loan claim.

참조판례

-대법원 1994. 6. 14. 선고 94다14797 판결

유사 판례

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