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(영문) 울산지방법원 2018.04.17 2017가단70818
대여금
Text

1. The Defendants jointly and severally liable for KRW 100 million to the Plaintiff and Defendant B with respect thereto, from May 24, 2016 to December 2, 2017.

Reasons

1. Facts of recognition;

A. On May 24, 2016, the Plaintiff lent KRW 100 million to Defendant B Co., Ltd. (hereinafter “Defendant Company”) and Defendant C guaranteed the return of the said loan.

B. As above, the Defendant Company borrowed KRW 100 million from the Plaintiff, and issued and delivered 200 common shares to the Plaintiff by August 24, 2016, which is the scheduled date of issuance of the said loan, in lieu of the repayment of the said loan, and if the said shares are not issued and issued, the Defendant Company shall pay interest at the rate of 4.6% per annum from the date of lending the said KRW 100 million to the date of repayment. The maturity was determined on December 31, 2016.

C. The Defendant Company did not issue and deliver common shares of the Defendant Company to the Plaintiff until now.

[Ground of recognition] Unsatisfy, Gap evidence Nos. 1 and 2, and the purport before oral argument

2. The assertion and judgment

A. According to the above facts, the Defendants are jointly and severally liable for payment of KRW 100 million to the Plaintiff from May 24, 2016, which is the delivery date of the instant complaint from May 24, 2016 to December 26, 2017, Defendant C is obligated to pay damages for delay at the rate of 15% per annum under the agreement rate until December 27, 2017, and from the following day to the date of full payment.

B. Defendant C, if the Defendant Company is unable to return KRW 100 million, decided to transfer 270 shares of the Defendant Company owned by Defendant C to the effect that the said Defendant’s written consent to dispose of the said shares was prepared and issued and delegated to the Plaintiff, which constitutes payment in kind.

On the other hand, the issue of the above argument is whether Defendant C, a debtor, intended to transfer the above shares into payment in substitution for the repayment of the previous obligation or intended to transfer them for the security of the previous obligation, and is the payment in kind of the above defendant.

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