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(영문) 광주고등법원 2020.11.25 2020나22598
부당이득금
Text

The plaintiffs' claims extended from the plaintiffs' appeal and the trial court are all dismissed.

after the filing of an appeal.

Reasons

1. Basic facts

A. Plaintiff A is the representative director of Plaintiff D Co., Ltd. (hereinafter “Nonindicted Company”); Plaintiff B is the same as Plaintiff A’s birth; Defendant is the person who engages in credit business.

B. On March 28, 2016, the non-party company (Plaintiff B: Plaintiff B) drafted an executory monetary loan agreement (hereinafter “notarial deed of this case”) between the Defendant and the Defendant, providing that “the creditor, the debtor company, the non-party company, the date and time of borrowing KRW 120,00,000 on January 16, 2016, the loan amounting to KRW 120,000,000, the due date for repayment, and KRW 25% on April 30, 2016.”

C. On July 19, 2016, the Defendant applied for a compulsory auction of 4,69 square meters of land for a factory in Jeonsung-gun, Jeonsung-gun, Seoul, which was owned by the Nonparty Company based on the instant notarial deed (F) and received KRW 85,880,204 from the said auction procedure on November 28, 2017.

On July 6, 2018, Nonparty Company filed a lawsuit against the Defendant seeking non-performance of compulsory execution based on the instant notarial deed (U.S. District Court 2017Dadan19574). On July 6, 2018, Nonparty Company ruled that “The amount borrowed on the instant notarial deed is not the Plaintiffs but the non-party Company borrowed, and the remaining amount of debt is KRW 21,221,896, which shall not be subject to compulsory execution in excess of the above amount.” The said judgment became final and conclusive around that time.

(hereinafter referred to as “prior judgment”). [Ground of recognition] . [In the absence of dispute, entry in Gap 2, 4 (including paper numbers; hereinafter the same shall apply), Eul 1 through 3, and the purport of the whole pleadings.

2. The principal obligor of the borrowed amount on the Notarial Deed asserted by the Plaintiffs is not the non-party company, but the Plaintiffs (Plaintiff B 70,000,000 won around April 15, 201, and Plaintiff A 50,000,000 won around March 4, 2015). The non-party company merely assumed or guaranteed 120,000,000 won out of the borrowed amount that the Plaintiffs owes to the Defendant.

Plaintiff

B from April 15, 2011 to March 8, 2016, the Defendant borrowed a total of KRW 194,940,870 from the Defendant, and the first lending date is from April 15, 201.

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