[2] The case holding that the decision of the court below that the court below did not err in finding that the sale price of the commercial complex should be deducted from the sale price of the commercial complex in the case where: (a) the first and second commercial complex after the Plaintiff purchased the land with the funds of its members and completed the sale of the first and second commercial complexes with the funds of its members; (b) the second complex was unable to pay the construction price as a result of the general sale; (c) the Plaintiff allocated three additional loans to its members for the second complex commercial complex and paid the construction price to its members; and (d) the Plaintiff additionally received three additional loans from the financial institution as security; and (e) the financial institution applied for a voluntary auction for the above three commercial complexes due to the overdue interest of the loans, and (e) the Plaintiff applied for a joint and several liability for the loans to the Plaintiff; and (e) the Plaintiff failed to pay the construction price to the Plaintiff by filing a lawsuit for indemnity against the Plaintiff; and (e) the Plaintiff did not have any additional objection to the sale price of the commercial complex; and (e) the above three additional loans should not be deducted from the sale price.

1. Basic factual basis

According to the reasoning of the lower judgment, the following facts are revealed.

A. The Plaintiff purchased the land with the funds of KRW 31,307,750 for the members of the Plaintiff, and newly constructed a 1,2 complex for the sale of automobile parts, and failed to sell the 2 complex to the general public. Around January 2005, the Plaintiff decided to allocate and sell the 2 complex for each unit to the members of the Plaintiff. Around February 2005, the Defendant, who had three units, obtained a loan of KRW 150,000 among the 2 complex shopping districts (hereinafter “instant shopping districts”), and paid KRW 3,00,000 to the Plaintiff as collateral (hereinafter “instant 150,000,000 won”). The Plaintiff jointly and severally guaranteed the above loan obligations.

B. On July 6, 2007, the Plaintiff held a general meeting of shareholders to determine the sale price of the two complex commercial buildings. The sale price of the instant commercial buildings is KRW 306,441,760 in total (including value-added tax). The Defendant completed the registration of transfer of ownership for six debentures except for the instant commercial buildings among the nine debentures allocated around February 26, 2008 and October 8, 2008 (hereinafter “transferable bonds”).

C. On March 2, 2011, the Defendant requested on March 2, 2011 that the Plaintiff would withdraw from the partnership to refund shares. On March 15, 2011, the Plaintiff notified the Defendant of the share refund amount of KRW 207,609,240, and then the Defendant treated the Defendant as withdrawal on June 20, 201.

D. Since then, when a loan financial institution files an application for voluntary auction on the instant commercial building due to the overdue interest of the loan that the Defendant borrowed, the Plaintiff, a joint guarantor, on April 10, 2012, subrogated for a total of KRW 168,105,948, and subsequently filed a lawsuit against the Defendant claiming a reimbursement amount (hereinafter “instant reimbursement claim”) against the Defendant, and was rendered a favorable judgment.

E. On September 9, 2013, the Plaintiff completed the registration of the establishment of a mortgage on the second loans among the instant commercial buildings in the name of the Nonghyup Bank Co., Ltd.

2. The ground of appeal Nos. 1 and 2) of the instant KRW 150 million (ground of appeal Nos. 1 and 2)

A. The lower court accepted the Defendant’s assertion that the instant KRW 150 million should be deducted from the sales price of the instant commercial building. The Plaintiff asserted that the transfer price of KRW 150 million had already been deducted from the sales price of the instant commercial building for KRW 60 million, but the lower court rejected the said assertion on the ground that the transfer price of KRW 150 million was not the amount of KRW 133,343,360, not the amount of KRW 150,000,000, but the amount of KRW 1333,343,360 for the Defendant.

B. However, the lower judgment is difficult to accept for the following reasons.

(1) The principle of free evaluation of evidence under Article 202 of the Civil Procedure Act means that it is not necessary to be bound by the formal rules of evidence, and does not allow a judge’s arbitrary judgment as to fact-finding. The court shall determine the truth of the fact-finding in accordance with logical and empirical rules, by means of admissible evidence that has gone through legitimate evidence-finding procedures. Even if the fact-finding falls under the exclusive authority of the fact-finding court, it shall not escape from such restrictions (see, e.g., Supreme Court Decisions 82Meu317, Aug. 24, 1982; 2006Da28430, Jul. 15, 2010).

(2) The allegations by the parties as to the instant claim for the reimbursement of KRW 150 million and the issues indicated below are as follows.

As to the Defendant’s defense of mutual aid, the Plaintiff alleged that the previous claim was deducted as part of the sales price for the six bonds. The Defendant asserted that the previous claim was KRW 150 million, not the amount of the dividends that was deducted from the six bonds sales price, but the amount of KRW 133,343,360, not the amount of the dividends that was deducted from the six bonds sales price, and that there was no difference between the Plaintiff and the Plaintiff again paid dividends.

This case’s KRW 150 million and the difference between the Defendant’s dividends is a large amount. Although there is no dispute over the fact that the transfer price paid all six bonds, there is a different argument as to the amount paid as the sale price. With respect to the sale price to be paid for the transfer of ownership of six bonds, the Plaintiff asserts the aggregate amount of value-added tax, while the Defendant claims the amount calculated by deducting value-added tax, this difference occurs.

Therefore, the key point behind the validity of this part of the claim for deduction is whether the transfer price for six bonds is the standard amount for full payment of the aggregate value-added tax with the sale price for six bonds. In addition, the propriety of the claim for deduction should be determined by considering whether there is any material supporting the possibility that the transfer price for six bonds would have been deducted as the sale price for six bonds, and whether there is room to deem that the dividends asserted by the Defendant have been paid.

(3) According to the reasoning of the lower judgment and the record of the instant case, the following facts are revealed.

(A) The sales contract between the Plaintiff and its members stipulates that a buyer bears the value-added tax.

(B) The Plaintiff failed in the general sale of the 2nd commercial complex, and paid the construction cost by receiving KRW 50 million per old unit from the members, and the money so received was to be deducted from the sales price of the 2nd commercial complex that was allocated to the members. The instant KRW 150 million was paid by the Defendant to the Plaintiff for the said reasons.

The Plaintiff, while selling a commercial complex in lots to its members, agreed to deduct the amount of 50 million won per old unit for the purchase of the commercial site and the amount of 63.7 million won per old unit for the payment of the construction price, and the dividends of 63.7 million won per old unit. The Defendant also agreed to deduct 243,623,250 won from the sales price for the 9 commercial complex bonds allocated to its members, including the amount of 93,623,250 won and the amount of 150 million won in the instant case.

(C) On February 26, 2008, the Defendant completed the registration of ownership transfer for 4 debentures among 6 debentures, and paid 10,393,530 won to the Plaintiff on the following day. The above amount is consistent with the aggregate of value-added taxes for 4 debentures for the previous commercial buildings, the ownership of which was transferred. In addition, on October 8, 2008, the Defendant paid 36,883,360 won to the Plaintiff upon completion of the registration of ownership transfer for 6 debentures. The above amount is consistent with the amount calculated by subtracting 243,623,250 won from the aggregate of value-added taxes for 6 debentures, the ownership of which was transferred on the same day, and the amount calculated by adding 243,623,250 won to the total amount of value-added taxes for 6 debentures (i.e., the amount calculated by mistake while the Defendant transferred ownership for 6 debentures).

Meanwhile, the document in which the Plaintiff arranged the current status of repayment of construction loans by each member (as attached to Eul evidence 6 submitted by the Defendant) is stated as follows: (a) KRW 79,602,250 on February 27, 2008, KRW 70,397,780 on October 8, 2008 and KRW 70,397,780 on October 26, 2008 on the basis of the settlement of the purchase price. Of the six bonds, the total amount of the purchase price for the four bonds the ownership of which was transferred on February 26, 2008 (including value-added tax) corresponds to the total amount of KRW 79,602,250 on the capital contribution of the Defendant and the Defendant’s commercial building site. In addition, the total amount of the sale price for the bonds the ownership of which was transferred on October 8, 2008 (including value-added tax) is in accord with the above amount paid by the Defendant to the above Defendant on the same day.

(D) The Plaintiff transferred the ownership of a shopping complex and then deducted the dividends of KRW 63.7 million per old unit from some partners, appropriated the said dividends as an outstanding amount for sale in lots, and accounted for the same as earned surplus. As of December 31, 2010, the total sum of the outstanding amount for sale in lots and the dividends of shares deducted from the members as above are consistent with the outstanding amount for sale in lots as of December 31, 2010, and it does not include dividends related to six bonds.

(4) In full view of the foregoing facts, there is room to view that the transfer price of KRW 150 million does not remain as the six bonds sales price. The reasons are as follows.

In the sales contract, the Defendant is required to bear the value-added tax, and when the transfer price is the specific details of the money paid by the Defendant at the time of the transfer of the six bonds ownership, it appears that the standard amount for full payment of the sale price is the total price of the value-added tax. If so, the Defendant’s payment of the sale price for six bonds as the sale price for six bonds is the total price of the value-added tax.

The instant KRW 150 million is originally planned to be deducted from the sale price of commercial buildings. The previous commercial buildings did not have any special circumstance to remain without deduction at the time of transferring the ownership of six bonds, and there are also data supporting the possibility that the previous commercial buildings would be deducted from the sale price of six bonds. In addition, there is no reasonable ground to distribute dividends to the Defendant more than the dividends to other members, and there is no other objective data to deem that the Defendant claimed dividends.

(5) The lower court should first examine whether the sale price to be paid by the Defendant for the transfer of ownership of six bonds is the aggregate amount of value-added tax. To that end, the lower court should have carefully examined various circumstances, such as comparing the specific amount of value-added tax and the details of the amount paid by the Defendant at the time of the transfer of ownership.

Nevertheless, the lower court, without conducting such deliberation as above, determined whether the transfer price was fully paid based on the amount of six bonds except value-added tax, thereby, deemed that the dividend payment claimed by the Defendant, rather than KRW 150 million, was deducted from the transfer price of six bonds, and received the Defendant’s objection to the deduction. In so doing, the lower court erred by failing to exhaust all necessary deliberations, which exceeded the bounds of the principle of free evaluation of evidence inconsistent with logical and empirical rules, and thereby adversely affecting the conclusion of the judgment.

3. The remaining grounds of appeal (Nos. 3, 4, and 5)

A. The lower court determined that the remainder of the refund of shares and the interest payment that the Plaintiff shall pay should be deducted from the sales price of the instant commercial building at KRW 306,441,760. The reasons are as follows.

(1) The Plaintiff’s share refund amounting to the Defendant is KRW 207,609,240 and damages for delay calculated at the rate of 5% per annum as prescribed by the Civil Act from June 21, 201 to the date of full payment after the Defendant’s withdrawal from the Defendant’s withdrawal date. The Plaintiff asserts that there is no damages for delay for delay with respect to share refund on the ground of the articles of incorporation that if the Plaintiff is liable to the Plaintiff, the repayment may be suspended. However, the foregoing articles of incorporation alone does not require any damages for delay.

As the Plaintiff received 34,125,405 won from the auction procedure on March 27, 2013 for real estate owned by the Defendant and appropriated it for the repayment of the claim for indemnity of this case, the claim for indemnity of this case remains 161,246,083 won, and damages for delay of 150,000 won out of which are 161,246,083 won. The Defendant set off the claim for indemnity of this case against the claim for indemnity of this case with the claim for indemnity of this case with the automatic claim, thereby extinguishing the claim for indemnity of this case and remaining 54,752,845 won in the amount of refund of shares. The said money should be deducted from the sale price of the commercial building

On the other hand, the defendant's obligation to sell the commercial building of this case is concurrently performed with the plaintiff's obligation to cancel the right to collateral security and to implement the registration procedure for transfer of ownership on the commercial building of this case, and the plaintiff cannot be deemed to have provided its obligation to pay damages for delay.

(2) On July 14, 2009, the board of directors made a retroactive payment of interest on loans received by partners for the payment of new construction costs. The Defendant paid interest on loans of KRW 17,038,00,000, and the said money should also be deducted from the sales price of the commercial buildings in this case. The Plaintiff asserted that there was no obligation to pay the said money because it did not undergo a resolution at the general meeting. However, even if the Plaintiff delegated this issue to the board of directors or did not so, the above assertion appears to have been ratified by the general meeting later by the resolution of the board of directors on July 14, 2009, and thus, it cannot be accepted.

B. Examining the reasoning of the lower judgment in light of the evidence duly admitted, the lower court did not err by failing to exhaust all necessary deliberations and exceeding the bounds of the principle of free evaluation of evidence inconsistent with logical and empirical rules, or by exceeding the bounds of the principle of free evaluation of evidence concerning the due date

4. Conclusion

The part of the judgment below against the plaintiff is reversed, and this part of the case is remanded to the court below for a new trial and determination. The remaining appeal by the plaintiff is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Dong-won (Presiding Justice)