(영문) 부산지방법원 2015.08.27 2014나20049

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(영문) 부산지방법원 2015.08.27 2014나20049

횡령금

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1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

Purport of claim and appeal

1..

Reasons

1. The following facts are found either as a matter of dispute between the parties or as a whole as a whole in each description of evidence A1, 2, 3, 4, 1, 2, 1, and 2.

A. On April 15, 2009, the Defendant subscribed to the award system of KRW 20 million, which requested the Plaintiff to pay in lieu of the deposit system.

Accordingly, the plaintiff paid 7.5 million won on behalf of the defendant.

B. On the other hand, on August 24, 2010, the Defendant drafted a notarial deed of transfer and takeover of claim (No. 727, 2010, a notary public, a notary public, drafted on October 30, 2010) with the purport that “The Defendant shall transfer to the Plaintiff the claim of KRW 7.5 million out of the claim for refund of lease deposit under a real estate lease agreement, which the Defendant had against C (hereinafter “instant claim”).

C. The Defendant did not notify C of the assignment of claims, and received from C an amount equivalent to KRW 7.5 million of the above lease deposit from C on August 201, and consumed it as living expenses, etc.

2. (i) Where the transferor receives money from the obligor before giving notice of the assignment of claims, unless the transferor fails to meet the requirements for counterclaim, the repayment made by the obligor against the transferor is valid, and as a result, the claim attributed to the assignee is extinguished. However, since the transferor has already transferred the claim and received the payment for the claim reverted to the assignee, it cannot be received as a natural settlement of the assignment of claims, and it is only possible to receive the money only to transfer it to the assignee. Thus, the money received by the transferor belongs to the assignee and the transferor belongs to the transferee, and as such, it is considered that the transferor is in the position to manage the affairs concerning the preservation of claims on behalf of the transferee.

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