The case holding that a lending and borrowing relationship between a mortgagee and another person was established in case where a mortgagee disposes of an object of security by means of transfer in lieu of lending money to another person, and let the mortgagee use the proceeds thereof.

The case holding that a lending and borrowing relationship between the mortgagee and the other party under Article 606 of the Civil Act was established in the case where the mortgagee entrusted the right of disposal of the Ansan for the purpose of security and received the payment of the security deposit with the security deposit, instead of lending money to the other party, was established in the case where the mortgagee and the other party used it as business fund.

Article 606 of the Civil Act

[Judgment of the court below]

Kim Jong-soo

September 16, 2005

1. The defendant shall pay to the plaintiff 50 million won with 20% interest per annum from March 8, 2005 to the day of complete payment.

2. The costs of lawsuit shall be borne by the defendant.

3. Paragraph 1 can be provisionally executed.

The same shall apply to the order.

1. Facts of recognition;

The following facts may be acknowledged in full view of the purport of the entire pleadings in the statements Nos. 1, 2, and 5-1, 2, and 6 of the evidence Nos. 1, 5-1, 2, and 6, and there is no counter

A. The non-party Kim Jong-chul and the non-party 1, the married couple of the company, at a discount from the plaintiff, had the bills owed to the plaintiff due to the default of payment.

B. On April 16, 2001, the Nonparty agreed to pay the Plaintiff a total of KRW 15.5 million to the Plaintiff until July 31, 2001. However, as security, the Nonparty delegated the Plaintiff with the authority to dispose of the machinery, equipment, inventory, and 30,000 won (the general 20,000 won and the 10,000 won of the mid-to-date 20,000) within the “movable Industry.”

C. On April 17, 2001, the Plaintiff again requested the Nonparty to perform a notarized act with respect to KRW 70 million out of the above debt, and on April 17, 2001, the notary public paid KRW 70 million to the Plaintiff jointly and severally until July 31, 2001, and as a security therefor, provided a notarized deed of a debt repayment contract with the effect that “The Nonparty shall provide the Plaintiff with the said KRW 30,000,000,000,000,000,000,0000,000,000,000,000,000,000,000,

D. Meanwhile, for the purpose of borrowing business funds from the Plaintiff, the Defendant, who had engaged in the business of in-depth manufacturing on the basis of the above 'movable industry', disposed of KRW 20 million in total from May 2001 to October 2001 with the consent of the Plaintiff, who was authorized to dispose of property as a mortgagee of the said in-depth test, and used it as business funds.

2. Determination:

A. As seen above, the Defendant, in lieu of the Plaintiff’s lending of money, disposed of and used the above 20,000 won 50,000 won, with the Plaintiff’s consent, and thus, it is deemed that the Defendant borrowed KRW 50 million from the Plaintiff as the substitute.

B. While the corporeal movables that the Plaintiff received as security from the Nonparty included 332 boxes in the Defendant’s possession, the Defendant collected more than KRW 50 million by disposing of the said 332 boxes owned by the Defendant as compulsory execution, etc., and thus, the Defendant’s defense was not sufficient to acknowledge the Defendant’s defense, since there was no evidence to acknowledge that the Defendant did not return money to the Plaintiff. Thus, the Defendant’s defense was without merit.

3. Conclusion

Therefore, the defendant is obligated to pay to the plaintiff 50,000,000 won and damages for delay calculated at the rate of 20% per annum from March 8, 2005 to the date of full payment, as requested by the plaintiff, from March 8, 2005 to the date of delivery of a copy of the complaint of this case. Thus, the plaintiff's claim of this case is justified and it is so decided as per Disposition.

Judges equal to judges;