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(영문) 의정부지방법원 2014.12.09 2014가단25061
부동산교환 차액금 반환
Text

1. The defendant shall pay 47,00,000 won to the plaintiff and 20% per annum from June 27, 2014 to the day of complete payment.

Reasons

1. Facts of recognition;

A. The Defendant owned C forest land 8,331 square meters and D 286 square meters (hereinafter “Defendant’s real estate”). Nonparty E owned Fluxine 483 square meters, G 409 square meters, and H road 128 square meters (hereinafter “E real estate”) in the former Special Self-Governing Province, Jeonnam-gun. The Defendant trusted the said real estate on the trust of Hanol Co., Ltd.

B. Around December 2013, the Plaintiff owned a claim of KRW 290,000 or more for the above E, but in order to secure compulsory execution against E, the said E, instead of paying the above claim, transferred its ownership to the Defendant, and instead, the Defendant agreed to transfer the ownership of the Defendant’s real estate to the Plaintiff (hereinafter “instant agreement”).

C. The Plaintiff assessed the difference between the Defendant’s real estate and E as KRW 47 million with the above agreement, and the Plaintiff paid KRW 45 million to the Defendant’s agent I (the Defendant’s leader) on December 3, 2013, and paid KRW 2 million with the above I’s account on December 20, 2013.

However, E’s real estate was entrusted to Han Han Trust Co., Ltd. at the time of the above contract, and the first beneficiary of the trust was the new Savings Bank Co., Ltd., and E was loaned approximately KRW 290 million from the new Savings Bank, Co., Ltd., the first beneficiary, and approximately KRW 290 million.

[Ground of recognition] Facts without dispute, Gap evidence 1, 2, 3, and 4, witness J and K's testimony, the purport of the whole pleadings

2. Determination as to whether the Plaintiff is a party to the instant agreement

A. The Defendant’s assertion (i.e., the Defendant’s assertion is merely a beneficiary of the instant agreement, and the Plaintiff’s remittance of KRW 47 million to the Defendant is merely a payment of the amount that E would pay to the Defendant, and thus, cannot exercise the right of rescission of the instant agreement.

The Plaintiff’s assertion is in the position of a party to the instant arrangement between E and the Defendant.

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