(영문) 인천지방법원부천지원 2015.09.10 2015가단102653

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(영문) 인천지방법원부천지원 2015.09.10 2015가단102653

양수금

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1. The plaintiff's claim is dismissed.

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

Reasons

1. On January 18, 2012, the Plaintiff’s assertion C determined the due date for payment to the Defendant one month after the Plaintiff’s request, and lent KRW 50,000,00 to the Defendant. On January 15, 2015, the Plaintiff transferred the foregoing loan claim against the Defendant (hereinafter “instant claim”) to the Plaintiff. The notification of the assignment of the claim reached the Defendant on January 19, 2015.

Therefore, the defendant is obligated to pay the above KRW 50,000,000 and damages for delay to the plaintiff who is the transferee of the above loan claim.

2. Determination on the defense prior to the merits

A. The gist of the Defendant’s defense prior to the merits is that the Plaintiff filed a claim against the Defendant for the transfer of the instant claim, and the assignment of the instant claim is mainly aimed at conducting litigation for C, and thus, constitutes a litigation trust, and thus, the instant lawsuit is unlawful.

B. Whether the principal purpose is to allow the transfer of claims is to be determined in light of the overall circumstances, such as the developments and methods of concluding the assignment contract, the time interval between the transfer contract and the filing of the lawsuit, and the personal relationship between the transferor and the transferee (see, e.g., Supreme Court Decision 2012Da23412, Mar. 27, 2014). The following circumstances are: (a) C has filed a lawsuit against the defendant on Nov. 26, 2014 against the court under this Court Order 2014Da4789, and thereafter C has transferred the instant claim to the plaintiff on Dec. 18, 2015; (b) the Plaintiff and the parties involved can be acknowledged; (c) the fact that the transfer of claims in this case is not sufficient to recognize that the transfer of claims in this case should be conducted mainly on the sole basis of the facts alleged by the Defendant, and thus, there is no evidence to prove otherwise.

3. Judgment C on the merits

참조판례

-대법원 2014. 3. 27. 선고 2012다23412 판결

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