(영문) 서울북부지방법원 2017.09.21 2016가합2561

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(영문) 서울북부지방법원 2017.09.21 2016가합2561

대여금

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1. Defendant B shall pay to the Plaintiff KRW 308,00,000 as well as 25% per annum from December 30, 2016 to the date of full payment.

Reasons

The Plaintiff asserted that the claim against Defendant C was based on KRW 358,00,000,000 from January 27, 2016 to April 2016.

However, Defendant C received and used the above money with the knowledge that the source of the money was the Plaintiff by Defendant C.

Therefore, since the Plaintiff and the Defendant C constituted a lending relationship, Defendant C is obligated to return to the Plaintiff the remaining loans of KRW 308,000,000 and damages for delay, excluding the loans of KRW 50,000,000, which were already paid by the Plaintiff from Defendant B.

Judgment

The evidence and the plaintiff's assertion presented in the argument of this case alone are insufficient to recognize that the plaintiff has a contractual right to claim the return of the amount of KRW 308,000,000 directly to the defendant C and the damages for delay, and there is no other evidence to prove otherwise.

Therefore, the plaintiff's claim against the defendant C cannot be accepted.

In full view of the overall purport of the pleadings as to the claim against Defendant B, the Plaintiff loaned money to Defendant B from January 27, 2016 to April 1, 2016, the Plaintiff and Defendant B, on August 1, 2016, with respect to the amount and maturity of loans to be returned to the Plaintiff by Defendant B, and the rate of delay damages, on April 27, 2016, the Plaintiff borrowed KRW 308,000,000 from the Plaintiff on August 8, 206, with the maturity of payment and delay damages rate of KRW 25% per annum. In the event that Defendant B fails to pay the above loans, the Plaintiff may be recognized as having no objection by compulsory execution.

There is a benefit to file a lawsuit in the same claim as the content of the authentic deed in order to obtain a judgment in which res judicata has no res judicata, since the authentic deed has an executory power, and there is

(see, e.g., Supreme Court Decision 95Da22795, 22801, Mar. 8, 1996).

참조판례

-대법원 1996. 3. 8. 선고 95다22795, 22801 판결

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