(영문) 인천지방법원 2015.08.12 2014나12713

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(영문) 인천지방법원 2015.08.12 2014나12713

대여금

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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.

Reasons

1. The plaintiff asserted around March 30, 1993 lent 30,200,000 won to the defendant with the agreed rate of 3% per month. On February 1996, the plaintiff was paid only part of interest on the loan in the voluntary auction procedure (Seoul District Court Seo branch C) for real estate owned by the defendant. The plaintiff was returned with the bond certificate stating an additional statement of 30,200,000 won, which is the balance of interest and interest on the loan from the auction court at the time.

Accordingly, on February 27, 1999, the Plaintiff applied for a payment order against the Defendant for the amount of KRW 30,200,000 in the balance of the loan principal and interest as Seoul Western District Court 9j1880, and submitted only the above additional statement as evidentiary materials. On March 4, 1999, upon receipt of the payment order as above, the payment order became final and conclusive on the 30th of the same month.

Therefore, the defendant is obligated to pay to the plaintiff KRW 30,200,000 and damages for delay.

2. We examine the judgment, the payment order is not recognized as res judicata even if it becomes final and conclusive, and Article 598 (3) of the former Civil Procedure Act (amended by Act No. 6626 of Jan. 26, 2002) provides that "the creditor entitled to partial distribution of claims shall submit an executory exemplification or certificate of claim, and enter and return the amount of distribution, deliver a certificate of claim payment, and deliver it to the debtor by requiring the creditor to submit an amount of money deposited." Considering that the amount of KRW 30,200,000 stated in an additional document in the certificate of claim that the plaintiff received part of the loan in the course of voluntary auction and received from the auction court is not the balance of the plaintiff's loan claim, it is insufficient to acknowledge that the defendant has the loan claim against the plaintiff in the course of voluntary auction, and there is no other evidence to prove otherwise.

Therefore, the plaintiff's assertion is without merit.

3. Conclusion, the plaintiff.

참조조문

-민사소송법 제598조 제3항

유사 판례

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-서울서부지방법원 2019.11.26 2019가단8064

-대법원 1974. 7. 16. 선고 74다381, 382 판결

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