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Reasons
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(영문) 서울고등법원 2014.12.18 2014나22354
대여금
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1. The part against the defendant in the judgment of the first instance shall be revoked;

2. The plaintiff's claim against the above cancellation portion is dismissed.

3.

Reasons

1. Basic facts

A. On April 27, 2011, the Plaintiff remitted KRW 120 million to the Defendant’s account, and the Defendant, on the same day, transferred the same amount to D’s account where the representative director of C Co., Ltd. (hereinafter “C”) was the Plaintiff’s spouse as the depositee.

On April 27, 2011, 200,000 2,040,040,000 on May 27, 2011, 201; 2,400,040,000 2,040,000 on June 28, 2011; 2,400,040,000 on a total of 2,040,000 on June 28, 2011; 7,200,000,120,000;

B. The Defendant received KRW 2,40,000 from D three times as indicated below, respectively, and remitted each of the KRW 2,40,000 to the Plaintiff on the same day.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2, Eul evidence Nos. 4, 5, 7, and 8 (including each number; hereinafter the same shall apply) and the purport of the whole pleadings

2. Summary of the parties' arguments

A. The Plaintiff’s assertion that the Plaintiff deposited to the Defendant on April 27, 2011 set the agreed rate of KRW 120 million as 2% per month and lent it to the Defendant. As such, the Defendant is liable to pay to the Plaintiff the above KRW 120 million and interest at the rate of KRW 24% per annum from June 29, 2011 to the date of full payment, which is the day following the payment of interest by the Defendant.

B. 120 million won, which the plaintiff transferred to the defendant's account, was only lent to the defendant's account, through the defendant, to the defendant, and is not lent to the defendant. Thus, the plaintiff's claim cannot be complied with.

3. Although there is no dispute as to the fact that money has been received between the parties to the judgment, the fact that the money remitted by the plaintiff to the defendant is a loan under a monetary loan contract shall be proved by the plaintiff who asserts such fact (see, e.g., Supreme Court Decision 72Da221, Dec. 12, 1972). Where documents, such as a contract or a loan certificate, are not prepared between the parties and it is unclear whether the plaintiff's remittance was made under a loan contract, the parties' intent and the situation at the time of

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