[1] Where the parties did not designate the obligation to be appropriated for repayment, the person responsible for assertion and certification of the appropriation of the obligation

[2] The meaning of "legal act as to one's household affairs" under Article 832 of the Civil Code and the criteria for its determination

[1] Article 477 of the Civil Act, Article 288 of the Civil Procedure Act / [2] Article 832 of the Civil Act

[1] Supreme Court Decision 93Da4938 delivered on February 22, 1994 (Gong1994Sang, 1077) Supreme Court Decision 2001Da38067 delivered on February 27, 2004 / [2] Supreme Court Decision 2000Da8267 delivered on April 25, 200 (Gong200Sang, 1287)

Plaintiff

Defendant 1 and one other

Daejeon High Court Decision 2006Na10093 Decided October 19, 2007

The part of the lower judgment against Defendant 1 is reversed, and that part of the case is remanded to Daejeon High Court. The appeal against Defendant 2 is dismissed. The costs of appeal against Defendant 2 are assessed against the Plaintiff.

We examine the grounds of appeal.

1. Regarding ground of appeal No. 1

The court below, based on the reasoning of the judgment of the court of first instance, acknowledged the fact that the plaintiff extended a total of KRW 107,000,000 to Defendant 1 during twenty nine times from May 6, 2002 to April 12, 204 (hereinafter “instant loan”), and acknowledged the fact that Defendant 1 repaid a total of KRW 41,00,000 to February 18, 2004, the court below rejected the Plaintiff’s claim that the above KRW 41,000,000 was received as repayment of a separate claim other than the instant loan (hereinafter “ separate claim”), on the ground that there was no evidence to acknowledge that the Plaintiff loaned the above KRW 44,00,000 to Defendant 1 separately from the instant loan, the court below rejected the Plaintiff’s repayment of KRW 44,00,000,000,000 for the reasons that there was no evidence to acknowledge that the Plaintiff loaned the above KRW 400,000 to August 26, 1004.

However, such judgment of the court below is not acceptable.

Where an obligor bears several obligations for the same kind of obligation to the same obligee, in the provision of performance, if the parties did not designate the obligation to be appropriated for the repayment, it shall be legally appropriated in accordance with Article 477 of the Civil Act. In particular, according to Article 477, subparagraph 4 of the Civil Act, if the order of statutory appropriation of obligation is equal under Article 477 of the Civil Act, it shall be appropriated for the repayment of each obligation in proportion to the amount of obligation. Thus, unlike the legal appropriation of obligation according to the above proportional appropriation of obligation, any person who claims that the legal effect of the statutory appropriation of obligation is more favorable to himself, the designation of appropriation of obligation between the parties, the agreement on the appropriation of obligation between the parties, or the full appropriation of the obligation in order of priority in the statutory appropriation of obligation shall be liable to assert and prove the fact. In this case, if the claimant did not prove that there was an agreement on the designation of appropriation of obligation or the appropriation of obligation, or that the obligation in question was fully repaid for the obligation in order of the statutory appropriation of obligation, the legal appropriation of obligation shall be made in proportion to each obligation (see Supreme Court Decision 393Da3434.

In this case, according to the above legal principles, the plaintiff asserts that the total amount of KRW 41,00,000,000, which the defendant 1 delivered for repayment, was appropriated for the repayment of the separate claim is responsible to prove that there was a designation or agreement for the repayment of the separate claim, or that the separate claim is in priority in the payment of the legal obligation. However, even if the plaintiff failed to prove it, as long as the separate claim exists, as long as the separate claim is not established, the legal appropriation of the two claims will be made, and if the other claim cannot be priority, the final appropriation of the obligation would be appropriated for the repayment in proportion to the amount of each obligation. The court below determined that the above repayment amount was appropriated for the full amount of the loan in this case, even if it recognizes the existence of separate claim, and the court below determined that the above repayment amount was appropriated for the payment of the loan in this case. In so doing, it erred by misapprehending the legal principles on the payment of the additional claim, thereby affecting the conclusion of this judgment. Therefore, the appeal pointing this out has merit.

On the other hand, even though the Plaintiff changed the cause of the claim to seek payment of KRW 44,00,000 on behalf of Defendant 1 among the instant loans, it is argued that the lower court failed to render a judgment. However, in light of the records, it is difficult to view that the Plaintiff explicitly changed the cause of the above claim. Therefore, the ground of appeal on this part is without merit.

2. Regarding ground of appeal No. 2

The term "legal act with respect to daily affairs" under Article 832 of the Civil Act refers to a legal act with respect to ordinary affairs necessary in the community of a couple. The specific scope shall be determined not only by the social status, property, revenue, and ability of a couple, but also by the custom of the community, which is the place of the living of the couple. However, in determining whether the specific legal act is a legal act with respect to daily affairs of a couple, the specific scope shall be determined not only by the internal circumstance or the individual purpose of the juristic act, but also by the objective type, character, etc. of the juristic act (see Supreme Court Decision 200Da8267 delivered on April 25, 200).

The court below maintained the conclusion of the judgment of the court of first instance that dismissed the plaintiff's claim against the defendant 2 on the ground that the above facts are insufficient to recognize that part of the loan of this case was deposited in the passbook under the name of the defendant 2 and the non-party who is his son, and the amount of KRW 3,00,000 among the loan of this case was used to repay the non-party's obligation, but the above facts alone are insufficient to recognize that the loan of this case was used for daily living expenses, such as living expenses necessary for the common life of the defendant's family members. In light of the records, the court below's fact-finding and judgment are just and acceptable, and there is no error of law in the incomplete hearing or misapprehension of legal principles as otherwise

3. Conclusion

Therefore, the part of the judgment of the court below against the plaintiff as to the defendant 1 is reversed, and that part of the case is remanded to the Daejeon High Court. The appeal against the defendant 2 is dismissed, and the costs of appeal against the above defendant are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices

Justices Park Ill-sook (Presiding Justice)