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1. The judgment of the court of first instance is modified as follows.
The defendant shall pay to the plaintiff KRW 64,000,000 as well as on November 1, 2008.
Reasons
1. Basic facts
A. On October 6, 2008, the Plaintiff, upon the introduction of the Defendant, agreed to borrow KRW 100 million from C as of December 6, 2008. On the same day, C set up a right to collateral security of KRW 130 million with respect to the Plaintiff’s immovable property owned by the Plaintiff, and issued a promissory note with face value of KRW 130 million with the Plaintiff and D’s joint name.
B. On October 6, 2008, C transferred 50 million won out of the loans to a deposit account under the Plaintiff’s mother’s name.
C. However, unlike the original plan, the Plaintiff agreed to borrow only KRW 40 million from C, and agreed to return the amount exceeding KRW 40 million to C. The Defendant suggested that the Plaintiff would pay interest for KRW 60 million to the Plaintiff, if the Plaintiff would be able to use the remainder of KRW 60 million out of KRW 100 million that the Plaintiff would borrow from C, and that no problem arises with the Plaintiff at the maturity of payment.
Accordingly, the Plaintiff remitted to the Defendant KRW 14 million, out of KRW 50 million deposited by C, and caused C to remit KRW 34 million to the Defendant’s account on October 7, 2008, and around that time, paid KRW 16 million in cash to the Defendant.
When each distribution schedule was prepared to distribute C the amount of KRW 61,132,061 and KRW 5,906,741 to C in each of the voluntary auction proceedings with regard to real estate owned D, D is merely a collateral obligation amount of KRW 36 million used by the Plaintiff against C, and D is merely a collateral obligation amount of KRW 40 million, including the above KRW 36 million and the interest thereon, and filed a lawsuit of demurrer against the distribution, but the Defendant was found to have lent KRW 100 million to the Plaintiff, and the judgment dismissing D’s claim was handed down on the ground that it is difficult to deem that the Defendant was partially repaid to the Plaintiff (Supreme Court Decision 201Da1243 Decided August 26, 2011). Accordingly, D’s appeal and final appeal against this were respectively filed.