Judgment on the recovery of the debtor's loan certificate and the grounds for waiver of the claim

In the case of a loan claim under a quasi-loan for consumption, the defendant defenses that the plaintiff renounced his right to claim, and the defendant holds the original copy of the loan, the court below should examine and determine the defenses of the defendant by clarifying the reasons why the defendant possesses the loan certificate.

Articles 187 and 393 of the Civil Procedure Act

Plaintiff 1 and three others

Dongnam Transportation Co., Ltd., Counsel for the defendant-appellant

Seoul High Court Decision 82Na3801 delivered on March 11, 1983

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

According to the reasoning of the judgment of the court below, since the defendant decided to invalidate this loan agreement at the board of directors of the defendant company's board of directors or the provisional shareholders' meeting of June 30, 1981 at the same year to invalidate this loan agreement at the original time, the plaintiffs' claim is just, and according to the evidence Nos. 2 and No. 3, the authenticity of this loan agreement is recognized, it cannot be found that the board of directors of the defendant company and the provisional shareholders' meeting of the defendant company was held at each date of the defendant principal, and it cannot be viewed that the defendant decided to invalidate this agreement, although there is a little discussion about the handling of the above quasi loan agreement, even if such resolution was made as the defendant's assertion, the defendant company did not dispute against the plaintiffs that there was no evidence that the plaintiffs consented to that resolution, and therefore, the defendant's defense is groundless.

However, according to the records, the defendant was decided to invalidate the above loan certificate at the meeting of the defendant company and the board of directors of the defendant company dated April 30, 1981, as stated in the first instance court's first instance trial's written reply of March 2, 1982, and the defendant company's general meeting of June 5, 1981. Accordingly, the plaintiff 1, 2, and 3 returned the loan certificate held by them to the defendant company, and the plaintiff 4 agreed to return the loan certificate to the defendant company, and the plaintiff 4 agreed to return the loan certificate as found. However, the plaintiff 1, 2, and 3 agreed to return the loan certificate to the defendant company, but the plaintiff 4 did not find at that time. In the third instance court's argument that the plaintiff's submission of the loan certificate was a waiver of the right to claim the loan as stated in the loan certificate and that the defendant did not pay the loan certificate, and it is clear that the defendant holds the original copy as stated in the records.

If so, the court below did not find out any trace of the judgment of the court below as to this point even according to the judgment of the court below, notwithstanding the fact that the defendant's above assertion should be examined and judged on the part of the waiver of the claim.

In addition, according to the records, it can be known that the non-party witness's testimony part of the non-party witness of the first instance court, who did not dismiss by the court below, conforms to the above argument of the defendant. The court below rejected the defendant's defense on the ground that there is no evidence to acknowledge the defendant's defense without mentioning the above evidence.

The court below did not decide on the part concerning the waiver of the claim among the defendant's assertion and rejected the above evidence that conforms to the facts of the defendant's assertion for the defendant's defense, and it did not err in the misapprehension of judgment, the incomplete hearing, and the violation of the rules of evidence against the rules of evidence, which affected the conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to Seoul High Court. It is so decided as per Disposition by the assent of all participating Justices

Justices Jeong Tae-tae (Presiding Justice)