beta
Text
1. Of the judgment below, the plaintiff's primary claim against the defendant, social welfare foundation B and C and against the defendant school foundation A.
Reasons
The grounds of appeal are examined.
1. Regarding ground of appeal No. 1
A. On the grounds stated in its reasoning, the lower court rejected the Plaintiff’s primary claim against Defendant A and C, on the ground that the loan agreement for consumption under Articles 1 and 2 of the holding of the lower court merely provides for the method of reimbursing the obligation for the payment of the unpaid construction cost under Articles 1 and 2 of the said agreement, and that the loan agreement for consumption under Articles 16(1)1 and 28(1) of the Private School Act constitutes a quasi-loan for consumption where the obligation for the existing construction cost is extinguished, and the new Plaintiff’s loan claims against Defendant A (hereinafter “Defendant A”) are created, unless there is any evidence supporting that the resolution of the board of directors under Articles 16(1)1 and 28(1) of the Private School Act with respect to the loan for consumption, and that the permission of the competent agency has been granted, it is not effective against Defendant A, and the joint and several debt obligations under the loan agreement for consumption against Defendant C against the Plaintiff under Articles 1 and
B. A quasi-loan for consumption is identical in that it is a contract to extinguish the existing debt and to establish the new debt, but in the case of a novation, it is not identical in the existing debt and the new debt, while in the case of a quasi-loan for consumption, it is distinguishable in that it is recognized as identical in principle.
In a case where the parties to existing claims and obligations agree to regard the object as a loan for consumption, whether the agreement is deemed a light or quasi-loan for consumption, is determined by the parties' will. If the parties' intent is not clear, it would be an issue of interpretation of intention. However, barring any special circumstance, it cannot be deemed that the creditor lost its identity and expressed his/her intent to cause any disadvantage like the obligor’s loss of security and loss of defense, and thus, it should be viewed as a quasi-loan for consumption.
Supreme Court Decision 2006.12.