(영문) 대구지방법원 2012.10.19.선고 2011나24973 판결

A. The plaintiff's obligation under the monetary loan contract of November 7, 2006 against the defendant does not exist in excess of the amount calculated at the rate of 30% per annum from July 29, 2007 to the date of full payment.

B. The defendant paid to the plaintiff 4,79,688 won with interest of 30% per annum from July 29, 2007 to the day of full payment, and then performed the procedure for cancelling registration of cancellation of the registration of chonsegwon which was completed as of November 7, 2006 by the Daegu District Court Branch of the Daegu District Court as to each real estate listed in the separate sheet as to the right to claim provisional registration of ownership transfer which was completed as of November 7, 2006 in accordance with Article 39278 of the provisional registration of the right to claim provisional registration of ownership transfer and the right to claim provisional registration of the second floor 52.9m of the real estate listed in the separate sheet No. 2 as of November 7, 2006.

C. The plaintiff's remaining claims are dismissed.

2. The total costs of the lawsuit shall be four minutes, one of which shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

Purport of claim and appeal

The decision of the first instance court is revoked. The plaintiff's obligation under the monetary loan contract for consumption on November 7, 2006 against the defendant is confirmed not to exist, and the defendant will implement each procedure for the cancellation of the registration of the establishment of chonsegwon which was completed on November 7, 2006 by the Busan District Court Branch of the Daegu District Court as to each real estate listed in the separate sheet to the plaintiff on November 7, 2006, the provisional registration of the right to request ownership transfer registration, which was completed on November 7, 2006 in accordance with the Ordinance No. 39278, and the provisional registration of the right to request ownership transfer registration, which was completed on November 7, 2006 in the separate sheet No.

Reasons

1. Facts of recognition;

The following facts are not disputed between the parties, or are recognized by Gap evidence 1, Gap evidence 2-1, 2-8, Eul evidence 1-3, Eul evidence 1-2, and Eul evidence 1-3, and the testimony of the court of first instance at △△, after integrating the whole purport of the pleadings:

A. On November 7, 2006, the Plaintiff entered into a loan agreement for consumption with the Defendant that the Defendant calculated 20 million won as interest rate of 3% and deducted 1.8 million won between the Defendant and the Plaintiff as a pre-paid interest, and that the repayment period is set at three months after the date of repayment (hereinafter referred to as the "loan", and the above loan agreement is referred to as the "loan for consumption", and the above loan agreement for consumption is referred to as the "loan for consumption").

B. On November 7, 2006, the first registration of the right to demand ownership transfer and the provisional registration of the right to lease on a deposit basis has been made for the obligation under the loan contract of this case, and on November 7, 2006, the first registration of the right to claim ownership transfer (the provisional registration of this case was made on November 7, 2006, No. 39278, Nov. 7, 2006, hereinafter referred to as the "provisional registration of this case") was made for each real estate listed in the attached list owned by the plaintiff on November 6, 2006,

C. On November 7, 2006, 18,200,000 won calculated by deducting 1.8.2 million won from the Defendant’s advance interest and 1.8 million won, and deducted 2,00,000 won for the establishment of registration, and paid 1,5430,000 won to the Plaintiff on the 8th of the same month.

D. The plaintiff's repayment to △△

On December 5, 2006, the Plaintiff remitted 15 million won to the account in the name of Embama (a person who was in de facto marital relationship with the Seocho-gu) designated by the Seocho-gu on December 5, 2006, and KRW 15 million to the account in the name of Embama (a mother) designated by the Seocho-gu on February 15, 2007, KRW 250,000 on May 14, 2007, KRW 200,000 on May 21, 2007, and KRW 40,000 on July 28, 2007, respectively.

E. The plaintiff's deposit

On September 26, 2012, the Plaintiff deposited the Defendant with the Daegu District Court No. 7069 (Seoul District Court 2012) as the principal deposit and paid KRW 6.4 million.

2. The plaintiff's assertion

The Plaintiff paid 15,430,000 won to the Defendant, and paid 16,000,000 won to the Plaintiff in full through the △△△△ from December 5, 2006 to July 28, 2007. On September 26, 2012, the Plaintiff paid 6,40,000 won to the Defendant.

Meanwhile, around May 2008, △△ promised the Plaintiff to liquidate the claims and obligations under the loan agreement of this case and to cancel the provisional registration of this case and the registration of creation of chonsegwon.

Therefore, the plaintiff seeks confirmation against the defendant that there is no obligation under the loan agreement of this case, and the defendant is obligated to implement each procedure of cancellation of the provisional registration of this case and the registration of establishment of chonsegwon.

3. Determination

A. Confirmation of the instant loan

The plaintiff asserts to the purport that since the part which exceeds the interest rate under the Interest Limitation Act is null and void among the 1.8 million won that the defendant deducted as the interest interest while lending KRW 20 million is null and void, it is deemed that the creditor received in relation to a lending and borrowing of money regardless of the name such as deposit, discount, commission, mutual aid, substitute payment and other titles under the Interest Limitation Act, and therefore, the creditor's receipt in relation to a lending and borrowing of money is deemed to be interest. Thus, the above brokerage commission is 2 million won and the amount which deducts the reasonable registration fee of KRW 118,90,00 which is the 770,000 won, and the remainder which is the 118,000 won, which

However, since the Act on the Restriction of Interest that limits the maximum interest rates under the contract for lending and borrowing of money was repealed by Act No. 5507 on January 13, 1998, and was enacted by Act No. 8322 on March 29, 2007 and enforced on June 30, 2007, the interest limitation law does not apply to the loan in this case, and otherwise, the interest limitation law does not apply to the loan in this case, and the interest rate of 3% per month applied in deducting interest unfairly is deemed null and void. The above brokerage commission amounting to 2 million won is paid to Seocho for the purpose of mediating and mediating the loan contract in this case, and it is not considered that the above brokerage commission is included in the first instance court witness's testimony, and it is difficult to recognize that the above registration fee is included in the expenses for making the provisional registration in this case and lease on a deposit basis as well as the expenses for making the provisional registration in this case and lease on a deposit basis.

Therefore, it is reasonable to view the loan principal of this case as KRW 20 million as stipulated in the loan agreement of this case.

B. Next, we examine whether the instant loan claims were extinguished due to the Plaintiff’s repayment and deposit for repayment.

(1) Determination as to the repayment portion

(A) Determination as to whether the Plaintiff’s act of repayment becomes effective against the Defendant

First of all, as to whether the repayment by the plaintiff is effective against the defendant, if a bond broker is certain at the time of receiving a loan from a person who intends to obtain a loan from the lender, the bond broker shall accept documents related to the security, and if the person who intends to obtain the loan requests to provide the money in advance, he/she shall make a loan to the lender with the right of collateral secured by him/her. In such cases, when the loan broker conducts the bond brokerage by making the loan broker contract and the security contract on behalf of the both parties to obtain the loan instead of being identified as the other party, the bond broker shall act as the representative of the lender in concluding a loan for consumption, and against the other party to the loan contract, it is reasonable to view that the borrower is authorized to receive the loan from the lender in accordance with the loan for consumption as provided in the contract, unless there are any special circumstances to the contrary, and therefore, the loan broker shall be deemed as valid as the loan broker's agent.

In light of the above legal principles, the above evidence No. 1 and No. 7 1 and No. 2, the testimony of the witness of the first instance court 0, June 1, 2012 by the court 00 . 0 . 2, the defendant 1 and 0 . 0 . 0 . 7 . 0 . 7 0 . 7 . 8 0 . 7 0 . 7 0 . 2 0 . 7 . 7 0 . 8 0 . 7 0 . 1 and 7 0 0 . 7 0 . 8 0 . 7 0 . 1 and 7 0 0 . 7 0 0 . 7 0 . 1 and 7 0 0 . 8 0 , 1 and 5 7 . 8 , the plaintiff were assigned to the defendant's account to the defendant.

(B) Judgment on the appropriation of performance

1) The principal and interest of the instant loan on February 6, 2007, which was due date for the instant loan, is KRW 20 million.

2) The Plaintiff’s repayment of the instant loan amounting to KRW 15 million on December 5, 2006, KRW 15 million on February 7, 2007, KRW 250,000 on May 14, 2007, KRW 200,000 on May 21, 2007, and KRW 4 million on July 28, 2007 is as seen earlier.

3) If the Plaintiff’s repayment of KRW 15 million, which was made on December 5, 2006, is appropriated for the principal (the interest rate of KRW 1.8 million has already been paid) and the balance remains (the interest rate of KRW 20 million has already been paid) of KRW 5 million (the interest rate of KRW 1.8 million) (the due date for a loan for consumption with interest rate of KRW 1.5 million exists for the benefit of the obligor as well as for the benefit of the obligee. Therefore, the borrower can make a repayment before the due date for the contract is returned, but the agreed interest shall be paid as compensation for damages to the obligee. Accordingly, even if the Plaintiff paid the above KRW 15 million prior to the due date for the contract, even if it was made by the Plaintiff prior to the due date for the agreed repayment, the interest rate of KRW 15 million has not been deducted from the principal from the date of the contract payment until the due date).

4) If the Plaintiff appropriated 150,000 won repaid on February 7, 2007 by the time, the amount of 4,931 won for delayed damage accrued up to that time (i.e., KRW 5 million X 36% per annum x 1/365 days per day, and the amount less than KRW 145,069 won ( KRW 150,000 - 4,931 won) is first appropriated for the principal, and the remainder of KRW 145,069 ( KRW 150,000) remains after being appropriated for the principal.

5) If the Plaintiff appropriated 250,000 won repaid on May 14, 2007 by the time, 459,688 won (=4,854,931 won per annum x 36% per annum x 96 days (from February 8, 2007 to May 14, 2007) x 4,854,931 won and delay damages 209,688 won (459,688 won - 250,00 won).

6) If the Plaintiff appropriated 200,000 won repaid on May 21, 2007, the remainder remains 243,115 won [the above 209,68 won + 33,427 won (the above 4,854,931 won x 36% per annum x 36% per annum x 7 days (from May 15, 2007 to May 21, 2007)], while the remainder remains 4,854,931 won and damages for delay 43,115 won (243,115 - 200 million won).

7) If the Plaintiff reimburses 400,000 won paid by the Plaintiff on July 28, 2007, the total amount of 34,757 won [the total amount of 43,115 won + 186,238 won [the above 43,854,931 won + 36% per annum 】 39 days (from May 22, 2007 to June 29, 2007) + 115,404 won per annum 30% per annum 4,854,931 won per annum 30% (from June 30, 2007 to July 28, 2007)], and the remainder of 5,243,940 won per annum 29,475,47,574, per annum 20,57,57, per annum, per annum 30,57,47,574, per annum of this Act];

(2) Determination on the validity of the deposit for repayment

On September 26, 2012, the Plaintiff deposited for repayment of KRW 6.4 million for the Defendant. The Plaintiff alleged that the Plaintiff’s obligation to the Defendant was fully repaid and extinguished due to the deposit, or deducted from the loan claim of this case. Thus, in order for the obligor to discharge his obligation due to deposit, the entire amount of obligation must be deposited. Except where there are special circumstances under which the obligor may be deemed to be a valid provision in the repayment of obligation, the deposit of part shall not take effect unless the obligee accepts it (see Supreme Court Decision 2008Da1051, Jul. 10, 2008; 2008Da1051, Sept. 26, 2012). The Plaintiff’s assertion that the sum of the principal and interest of this case as of September 26, 2012 as of the deposit date is 12,235,916 [4,79,689, 789, 78, 298, 368, 469, 2868).7

(3) Sub-decisions

Therefore, the Plaintiff is obligated to pay to the Defendant 4,79,688 won in balance of the leased principal and 30% interest per annum from July 29, 2007 to the day of full payment, which is the day following the date of final repayment.

C. Determination on the assertion of the agreement on liquidation of bonds

Inasmuch as there is no evidence to support the Plaintiff’s assertion that △△ promised to liquidate the Plaintiff’s obligation based on the loan agreement of this case and to cancel the registration of provisional registration of this case and the establishment of chonsegwon, the Plaintiff’s assertion is without merit.

3. Conclusion

Thus, the plaintiff is obligated to pay to the defendant 4,79,68 won and damages for delay calculated at the rate of 30% per annum from July 29, 2007 to the day of full payment. The plaintiff's obligation under the loan agreement of this case against the defendant does not exceed the above money. Thus, the plaintiff's claim for confirmation of the non-existence of the whole debt of this case for confirmation of the non-existence of the above debt of this case is justified within the extent of the above recognition, and the remaining claim shall be dismissed as it is without merit.

Meanwhile, in general, in cases where the Plaintiff claimed the implementation of the procedure for cancellation registration of the principal and interest of the Plaintiff’s establishment of a collateral and claimed for the implementation of the procedure for cancellation registration of the principal and interest of the Plaintiff’s establishment of a collateral, but it is found that the amount of repayment did not reach the extinguishment of the full amount due to dispute over the calculation of principal and interest, etc., barring any special circumstance, it is reasonable to interpret that the remaining debt established during the Plaintiff’s claim and sought cancellation of the above registration, and it also includes the purport of seeking the cancellation of the above registration, and it is reasonable to recognize the benefit of the Plaintiff’s claim in advance as a lawsuit for future performance (see, e.g., Supreme Court Decision 2007Da83694, Apr. 10, 2008). Thus, the Defendant is obliged to cancel the provisional registration of this case and the registration of the right to lease on a deposit basis on condition that the Plaintiff would have paid damages for delay calculated at a rate of 30% per annum from July 29, 2007.

However, since the judgment of the first instance court is unfair by partially different conclusions, it is so decided as per Disposition by accepting part of the plaintiff's appeal and changing the judgment of the first instance court as above.