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부산지방법원 서부지원 2018.08.22 2017가단109241

약정금

Text

1. Defendant B shall pay to the Plaintiff KRW 126,369,110 and the interest rate of KRW 15% per annum from April 1, 2017 to the date of full payment.

Reasons

1. Basic facts

A. In March 2015, Defendant B operated the “D” by borrowing the name of Defendant C in the name of Defendant C, and completed the registration of the business in the name of Defendant C with the seal imprint certificate and the seal imprint certificate obtained from Defendant C.

B. In 2015, the Plaintiff filed a complaint against the Defendants and E with Busan District Prosecutor’s Office by penal code 10190 in 2015, for the following reasons.

(1) Defendant B, by deceiving the Plaintiff, obtained a total of KRW 297,00,000 from May 2013 to January 12, 2015.

(2) The Defendants and E, in collusion, discontinued the “F” operated under the name of Defendant B for the purpose of evading the Plaintiff’s compulsory execution, established the “G” under the name of Defendant C, and exempted compulsory execution by transferring the said F’s assets to those companies.

C. On December 11, 2015, the Plaintiff and Defendant B agreed to pay KRW 204,00,000 to the Plaintiff in installments from December 201 to December 5, 2015. However, if Defendant B delays the performance of the said divided obligation on at least two occasions, the Plaintiff and Defendant B shall lose the benefit of the whole remainder of the obligation and pay the remainder plus 15 percent (15%) per annum from the following day to the date of full payment. ② Defendant C shall jointly and severally perform the said obligation, and ③ the Plaintiff and the Plaintiff shall withdraw the complaint with the Defendants and E (hereinafter “instant agreement”).

Defendant B’s joint guarantor, at the end of the instant agreement, sealed Defendant C’s seal impression on the side of the part indicated as Defendant C’s joint guarantor, and issued Defendant C’s seal impression to the Plaintiff on August 24, 2015.

In preparing the instant agreement, the Plaintiff did not confirm the granting of the power of representation on the preparation of the intent of joint and several sureties or joint and several sureties.

In accordance with the instant agreement, the Plaintiff received total of KRW 77,630,890 from December 31, 2015 to April 13, 2017, but received KRW 77,630,890.