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(영문) 서울고등법원 2016.09.01 2016나7465
약정금
Text

The defendant's appeal is dismissed.

Expenses for appeal shall be borne by the defendant.

Purport of claim and appeal

purport.

Reasons

1. The grounds for the court’s explanation concerning this case, such as the quoted of the judgment of the first instance, are as stated in the reasoning of the judgment of the first instance, except for supplementing or adding the judgment as stated in the following two paragraph (2). As such, the court cited the same as stated in the reasoning of the judgment of the first instance pursuant to the main sentence of Article 420 of the Civil Procedure Act, i.e., “The defendant’s assertion to the effect that it is invalid or cancelled, but the defendant’s assertion is alleged to the effect that it is invalid or cancelled.”

2. Supplement and addition of judgments;

A. The defendant asserts that the money claimed by the plaintiff is about KRW 125 million that the plaintiff loaned to the former husband C with gambling funds, and thus, the plaintiff cannot claim the return of the money as illegal consideration. Thus, the defendant does not have any obligation to repay the money to the plaintiff. However, there is no evidence to acknowledge that the plaintiff's lease to the former husband C was the name of gambling funds.

The defendant's argument is without merit.

B. On July 30, 2012, the Defendant was granted immunity from the court and the decision became final and conclusive. However, the Defendant asserts to the effect that, although at the time, C did not enter the Plaintiff’s claim of KRW 125 million against the Defendant in the creditor list, C was believed to have repaid all the Plaintiff’s claim against the Plaintiff, and did not enter the claim in the creditor list, and the Defendant did not intentionally omit it, and thus, the Plaintiff’s claim of the agreed amount against the Defendant was also exempted.

In full view of the purport of the argument in Eul evidence Nos. 1 through 4, the defendant stated the defendant's surety obligation as to KRW 100 million lent to C on May 17, 2005, and the defendant's surety obligation as to KRW 50 million lent to C on June 1, 2004, but the plaintiff lent to C on July 2007.

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