2014Da428444 Promissory Notes

A

B

Seoul Central District Court Decision 2013Na43856 Decided May 29, 2014

May 28, 2015

The judgment of the court below is reversed, and the case is remanded to the Seoul Central District Court Panel Division.

The grounds of appeal are examined.

1. As to the assertion of mistake of facts and incomplete hearing, this part of the ground of appeal is the purport of disputing the determination of evidence by the lower court and its-based fact-finding. The evaluation of evidence, which is the premise of fact finding and its premise, belongs to the discretionary power of the fact-finding court, unless it goes beyond the bounds of the principle of free evaluation of evidence. The examination of records does not seem to have erred by failing to exhaust all necessary deliberations for the determination of evidence and the fact-finding,

2. As to the omission of judgment

(1) After recognizing the fact that the plaintiff lent money to the defendant, the court below did not decide on the defendant's deposit defense as follows, accepted part of the defendant's repayment and the defense of extinctive prescription, etc., and ultimately, held that the defendant bears the principal and interest of the loan amounting to KRW 112,07,289 on the date of the lawsuit in this case, and held that the defendant is liable to pay to the plaintiff 100 million won which the plaintiff seeks from the date of delivery of the copy of the complaint in this case

(2) However, according to the records, the defendant's legal representative prepared a promissory note No. 24 million won in face value to the plaintiff on July 2, 2007 through a preparatory document dated November 29, 2013, which was stated on the date of the first pleading of the court below, for the purpose of securing the plaintiff's obligation to borrow loans on July 14, 2007, and deposit the plaintiff as a deposit in a promissory note No. 24 million won in the above notarial deed for the purpose of preventing compulsory execution, and accordingly, the above notarial deed No. 9-1 (judgment) alleged to the effect that "the defendant was declared not to grant compulsory execution based on the above notarial deed on the ground that all debts on the notarial deed were repaid and extinguished."

(3) Nevertheless, the court below did not make any judgment as to the defendant's assertion of payment of deposit. The court below erred by omitting judgment as to the facts alleged by the parties, failing to perform its duty of explanation, which affected the conclusion of the judgment.

3. Conclusion

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Sang-hoon

Justices Kim Jae-tae

Chief Justice Cho Jae-hee

Justices Park Sang-ok