In a case where an individual’s purchase of construction equipment for lease purposes entered into an installment financing contract with the installment financing company and paid the purchase price to the equipment selling company, but the relevant construction equipment is not manufactured and delivered to the buyer, whether the buyer may refuse to pay the installment to the installment financing company on this ground (negative)

Where an individual purchases construction equipment for the purpose of operating a business in which he/she receives rents and concludes an installment financing contract to raise funds for the purchase of such equipment, such installment financing contract shall not exercise the right to refuse the payment of installments as prescribed in Article 12 (1) 2 and (2), Article 4 (1) 2 and (2) of the Installment Transactions Act, on the ground that the application of Article 12 (1) 2 and (2) of the Installment Transactions Act is not made for the purpose of commercial activities.

Article 2(2), Article 12(1)2, and Article 12(2) of the Installment Transactions Act

Kim Jong-min et al. (Law Firm Han, Attorneys Yoon-ho et al., Counsel for the plaintiff-appellant)

Samsung Capital Co., Ltd. (Attorney Cho Young-hoon, Counsel for the defendant-appellant)

June 26, 2003

1. All of the plaintiffs' claims are dismissed.

2. The costs of lawsuit are assessed against the plaintiffs.

The debt of KRW 100,00,000 to the above plaintiff's defendant based on the installment financing contract dated March 25, 2002 between the plaintiff Kim Jong-su and the defendant was due. The debt of KRW 60,000,000 against the above plaintiff's defendant based on the installment financing contract between the plaintiff Song-su and the defendant on June 5, 2002 between the plaintiff Song-su and the defendant was due, and the debt of KRW 60,00,000 against the above plaintiff's defendant on May 21, 202 between the plaintiff Song-su and the defendant was due to the installment financing contract between the plaintiff Shin-su and the defendant on June 5, 2002; the debt of KRW 60,000,000 against the above plaintiff's defendant on June 25, 200; the debt of KRW 60,000 and KRW 600,000 for each of the above plaintiff's defendant's defendant's installment financing contract between the plaintiff Shin and the defendant.

1. Basic facts

The following facts are alleged by the parties, or there is no dispute between the parties, or by Gap evidence Nos. 1, 4-1 through 5, Gap evidence Nos. 2, 3-1 through 6, Gap evidence Nos. 5, 6-1, 6-2, Gap evidence Nos. 7 through 9-3, and Eul evidence Nos. 1-1 through 6 (the plaintiffs asserted that the documents are forged documents prepared voluntarily by using the plaintiffs' seal while the documents are in possession of the plaintiffs' seal, but the testimony of each part of the witness Kim Jin-jin and Song-heat is insufficient to recognize it, and there is no other evidence to prove it differently), Eul evidence Nos. 2 and 4-1 through 6, and all arguments and arguments.

A. On early 2002, Nonparty New Heavy Industries Co., Ltd. (hereinafter referred to as “Nonindicted Heavy Industries Co., Ltd.”) was a company manufacturing and selling vehicles, etc. and entered into a installment financing contract between the Defendant and the buyer in selling the vehicles, etc., the Defendant directly paid the installment capital to the Nonparty Company. On the other hand, the Defendant entered into a installment financing agreement with the buyer to receive monthly payments from the buyer, and the Defendant was able to enter into the said installment financing contract with the Defendant on behalf of the buyer.

B. Around March 2002, the plaintiffs purchased a tunnel construction work vehicle manufactured by the non-party company in the names of the plaintiffs from the non-party Han-dong Co., Ltd., the representative director of the non-party company, and leased it to a third party on the face of a week, and agreed to pay 1 million won per month to the plaintiffs, and issued the plaintiffs' seal imprint and certificate of seal impression to the above Han-dong Co., Ltd.

C. Accordingly, on March 22, 2002, Nonparty Han-dong purchased from Nonparty Company the amount of KRW 130,000,000 (Plaintiff 2 through 5) or KRW 200,000,000 (Plaintiff 1), respectively, one of which is to be paid in cash by receiving a installment financing from the Defendant recommended by the Nonparty Company.

D. After that, between March and June 2002, the above Handong Co., Ltd., on behalf of the plaintiffs, extended a loan of KRW 60 million through KRW 100 million (Plaintiffs 2 through 5) to the plaintiffs as shown in the attached installment financing transaction statement (Plaintiffs 1). The above loan was made every month from the plaintiffs to receive KRW 2,824,40 (Plaintiffs 2 through 5) through KRW 4,707,340 (Plaintiffs 1) for 24 months. In addition, the above contract was made to provide the defendant with each of the above working vehicles as security, and each of the above installment funds was delivered by each of the above defendant to waive the above working vehicles (Evidences 3-1 through 6) and each of the above installment financing contracts (Evidences 2-1 through 6).

E. Meanwhile, the defendant urged the plaintiffs to perform the installment payment under the above agreement, and as a result of settlement of the principal and interest on the remaining installment loan on October 18, 2002, 32,40 won of principal and interest on the remainder of the installment loan, and 62,109,587 won of principal and interest on the remainder of the installment loan, and 128,758 won of principal and interest on the part of the plaintiff Kim Jong-Un in the case of the plaintiff Song-si, and 62,109,58 won of principal and interest on the remainder of the installment loan, and 53,662,783 won of principal and interest on the late payment in the case of the plaintiff Song-gu, and 148,935 won of principal and interest on the late payment in the case of the plaintiff Song-gu, and 59,312,250 won of principal and interest on the late payment in the case of the plaintiff Jung-gu, and 53,3193,408 won of principal and 508 won.

2. Issues (existence of Installment Financing Obligations)

A. The plaintiffs' assertion

The plaintiffs, first, are only the fact that they lent their names to the above Han-chul, and there was no delegation or delegation of authority to conclude the above automobile purchase contract or installment financing contract between the non-party company or the defendant on behalf of the plaintiffs. Thus, they sought confirmation as to the defendant as there was no obligation under each of the above installment financing contract against the plaintiffs. Second, even if the plaintiffs are liable to pay the above installment financing fund to the defendant as the above contract is valid, each of the above vehicles which became the object of transaction was manufactured and delivered to the defendant, and the plaintiffs did not have been delivered to the defendant, and therefore, they can refuse to pay the above installment payment to the defendant under Article 5 subparagraph 2 through subparagraph 2 of Article 12 of the Installment Trade Act.

B. Determination

(1) Validity of a contract for purchase of goods and vehicles and a contract for installment financing

Therefore, as to the validity of each of the above contracts between the plaintiffs and the non-party company and the defendant, the above facts, Gap evidence Nos. 12, Eul evidence Nos. 13-1 through 3, Eul evidence No. 2-1 through 6, Eul evidence Nos. 2-3, and the whole purport of oral argument is added to the testimony of Song Jin-jin, the plaintiffs agreed to purchase each of the of the of the of the of the above vehicles under the plaintiffs' names and delivered the seal impression and a certificate of seal impression to Han-J. Further, the method of raising the above vehicle purchase price should be regarded as the above Han-J. Further, it is reasonable for the plaintiffs to conclude the installment financing contract on behalf of the defendant who concluded the installment financing contract with the non-party company, and it is not reasonable for the plaintiffs to conclude the above installment financing contract with the non-party company to recognize that the defendant's employees were in charge of the defendant's telephone, and the defendant's employees were not in contact with the non-party company's own funds.

(ii)the existence of the right to refuse installment payments.

Next, as to whether the plaintiffs can refuse to pay installment financing under Article 5 (1) 2 through 12 (1) 2 of the above Agreement on Handling of Installment Funds on the ground that each of the above vehicles was manufactured and not delivered to the plaintiffs, it is found that there was no delivery to the plaintiffs since each of the above vehicles was actually manufactured and delivered. Article 5 (2) of the above Agreement on Handling of Installment Funds provides that the defendant may seek the return of installment financing funds and payment of interest thereon to the non-party company and that if the above provision of installment financing was not applied to non-party 2 for the purpose of delivery of all or part of installment financing funds, the defendant could not seek payment of installment financing funds from the non-party company for the purpose of the above agreement on the ground that Article 12 (1) 2 and (2), Article 4 (1) 2 and (2) of the above Agreement on Handling of Installment Funds was not applied to the non-party 1, and thus, the defendant's allegation that the above agreement was not applied to the non-party 2's purchase of installment funds for the purpose of this case.

3. Conclusion

Therefore, each of the plaintiffs' claims in this case is dismissed since it is without merit (the plaintiffs are claiming the lawsuit in this case with specifying the amount of claims, but it is difficult to specify the amount of obligations that the plaintiffs bear with respect to the defendant, and the plaintiffs also seek confirmation of the existence of obligations based on the premise that each of the above contracts is null and void, so the amount of obligations borne by the plaintiffs should not be specified). It is so decided as per Disposition.

Judges Yan Jin-hun (Presiding Judge)