206Na8652 Loans

Red○ (OO - 000)

Seoul ○○-gu ○○○-dong ○○○○-gu

○○ (00 - 000)

○○○○○○○ apartment ○○○○ Dong, ○○-dong, ○○○

Public-service Advocates Kim Jin-young, Counsel for defendant

Seoul Western District Court Decision 2006Gaso18874 Decided October 18, 2006

March 22, 2007

April 5, 2007

1. Revocation of a judgment of the first instance;

2. The plaintiff's claim is dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

The defendant shall pay to the plaintiff KRW 5,00,000, and shall pay to the plaintiff the full amount from the day after the delivery of the complaint of this case.

By the day, an amount calculated at the rate of 20% per annum shall be paid.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Basic facts

A. The defendant, on November 15, 2004, escaped from North Korea on or around November 15, 2004 and was staying in the Chinese Peninsula 2004.

12. On August 18, 198, the defendant prepared and delivered a contract to the effect that "the defendant will pay 3% damages for delay from the date of the violation in addition to 3% damages for delay" (hereinafter referred to as "the contract of this case") to Kim○, who is engaged in the business of arranging entry into the Republic of Korea by North Korean defectors, at the time of leaving Korea to Korea, and at the time of arrival of 5 million won borrowed from Kim○, Kim○, in Korea.

B. The defendant went to the border of Mongolia through the heart and north border, and put Mongolian to the border of Mongolia, but the defendant entered the Republic of Korea on February 18, 2005 after being transferred to the Embassy of the Republic of Mongolia as the main line of the Mongolian government, and completed the course of social adaptation in one member of the Ministry of Unification from March 25, 2005 to June 16, 2005, after having been admitted to the apartment complex prepared by the Government of the Republic of Korea on June 16, 2005.

C. On the other hand, on June 18, 2005, the Plaintiff and Kim○○ requested the Plaintiff to pay directly the agreed amount under the first agreement of this case by finding the money borrowed from the Plaintiff as the money that he borrowed from the Plaintiff. The Defendant prepared and delivered to the Plaintiff a cash tea certificate (hereinafter referred to as “the instant loan certificate”) to the effect that the Plaintiff would pay the Plaintiff a delay payment amount of 5 million won borrowed from the Plaintiff by December 31, 2005, and if it is in violation, the Defendant would pay the Plaintiff a delay payment amount of 3% from June 18, 2005 to 3% delay damages (hereinafter referred to as “the instant second agreement”).

[Ground of Recognition: Facts without dispute between the parties; entry of Gap 1 through 4; Eul 5 through 7; testimony of witness of the first instance court; Ma○○○, Ma○○ and Kim○○; Purpose of the whole pleadings and arguments]

2. The plaintiff's ground for claim

On December 18, 2004, the Plaintiff lent 4 million won to the Defendant via Kim○○ through the Kim○○, and at the time, the Defendant agreed to pay 5 million won including interest to Kim○○ at the time, including the Plaintiff, and the Defendant was obligated to pay the agreed amount and delay damages to the Plaintiff since the Defendant prepared and delivered the instant loan certificate to the Plaintiff on June 18, 2005. In addition, the Plaintiff acquired the claim for the agreed amount under the first agreement from Kim○○○, and the Defendant is obligated to pay the agreed amount and delay damages to the Plaintiff pursuant to the first agreement.

3. Determination

A. Determination as to whether the Defendant is obligated to pay a loan under a monetary loan agreement or an agreed amount under the second agreement of this case (1) 4 million won from the Plaintiff, first of all, as to whether the Defendant is obligated to pay the above loan amount to the Plaintiff as the Plaintiff borrowed 4 million won from the Plaintiff, the health room, the entry of the evidence No. 1, the testimony of the first instance witness Kim○, and the overall purport of the pleadings by Kim○-○, on December 10, 2004, he received 4 million won from the Plaintiff as the Defendant’s entry expenses in the Republic of Korea, and the fact that the Defendant prepared and delivered the instant loan certificate to the Plaintiff, but it is difficult to recognize that the Defendant actually borrowed 4 million won from the Plaintiff. Rather, according to the purport of the testimony and arguments by the witness Kim○-○, the Plaintiff may pay 5 million won after entering the Republic of Korea if the Defendant invested 4 million won from Kim○-○ in the Republic of Korea.

In response to the proposal, ○○○○○ issued KRW 4 million to the Plaintiff, and ○○○○○○ issued the above 4 million to the Defendant on December 18, 2004. As such, the Defendant can be recognized as having written the contract of this case to the effect that 5 million won was borrowed from Kim○○ on December 18, 2004, the Plaintiff’s assertion based on the premise that the Defendant borrowed 4 million won from the Plaintiff is without merit. (2) Next, as to whether the Defendant is liable to pay the Plaintiff the agreed amount under the second agreement, the Defendant prepared and delivered the certificate of loan of this case to the Plaintiff. However, as seen above, ○○ issued 4 million won to the Plaintiff on the part of the Defendant’s entry expenses, ○○○○ issued the above 10 million loan to the Plaintiff on the premise that ○○○○○○ issued the above 100 million loan to the Plaintiff on the premise that she would not directly pay the Plaintiff the loan of this case to the Plaintiff within 300 days after the Plaintiff’s completion of the agreement.

B. Determination as to whether the Plaintiff has a claim against the Defendant for the assignee fee

In accordance with the first agreement from Kim○-○, the Plaintiff acquired the claim for the agreed amount under the first agreement.

As to whether the Defendant is obligated to pay the above agreed amount to the Plaintiff, the Defendant prepared and delivered the instant contract to Kim○○, and the Plaintiff and Kim○○ demanded the Defendant to pay the above claim directly to the Plaintiff, and the Defendant prepared and delivered the instant loan certificate as seen earlier. Therefore, barring any special circumstance, the Defendant is obligated to pay the above agreed amount and delay damages to the Plaintiff who acquired the claim for the agreed amount under the first agreement.

In this regard, the defendant did not have any experience or knowledge of the contracts under the capitalism system at the time of the preparation of the contract of this case, and was arrested to the public peace of China and was at risk of being repatriated to North Korea. Kim ○-do was well aware of these circumstances of the defendant as North Korean defectors, and the mediation fee was too high as the mediation fee was extremely high. In light of the fact that the first agreement of this case was obviously lost fairness, and thus, the first agreement of this case was null and void.

In light of the above, an unfair legal act stipulated in Article 104 of the Civil Act is established when there exists an objective imbalance between benefit and benefit in return, and subjectively, a transaction which lost balance is conducted using gambling, rashness, or inexperience of the victimized party. The purpose of the act is to regulate gambling, rash, or influence of the injured party. The requirement for establishing an unfair legal act is not all required, but only a part of the requirement is sufficient. The term "pathmbling" refers to "influence," and it may be based on an economic cause, and it may be based on mental or psychological cause. Whether the party was in a state of pathy is determined by considering all the circumstances such as his status and property status, and the degree of gambling in the situation (see, e.g., Supreme Court Decision 196Da1464, Jun. 14, 196). 196.

In full view of the health stand, Gap evidence 2 through 4, Eul evidence 2, Eul evidence 5 through 7, testimony and the overall purport of arguments by witnesses of the first instance court, ○○○○○ and Kim○○, as to the instant case, 1. Kim○ concluded an agreement with North Korean defectors specialized in arranging entry into the Republic of Korea, on the pretext that they would help North Korean defectors enter the Republic of Korea, on the condition that they would be paid part of the settlement allowances paid by the Government of the Republic of Korea, while allowing North Korean defectors to prepare a written agreement to help them repay the loan as stated in the instant agreement. 2) In light of the fact that the defendant's personal safety is not guaranteed, it is difficult to establish the above agreement to assist the defendant to live in the Republic of Korea without considering the meaning of the agreement or the legal effect of the agreement, and 3) it is difficult to establish the above evidence to prove that the defendant would be 00,000 won of the instant agreement to use the settlement money under the pretext of the defendant's personal security.

4. Conclusion

Therefore, the plaintiff's claim of this case shall be dismissed as it is without merit, and since the judgment of the court of first instance is unfair with different conclusions, the judgment of the court of first instance shall be revoked and the plaintiff's claim shall be dismissed as per Disposition.

Judges Kim Jong-soo

Judges Ocality

Judges Shin Young-chul