A. The Plaintiff (Counterclaim Defendant) shall pay to the Defendant (Counterclaim Plaintiff) 241,906,018 won with 5% interest per annum from February 17, 2009 to September 7, 2016, and 20% interest per annum from the next day to the day of full payment.

B. The Plaintiff (Counterclaim Defendant)’s principal claim and the remainder of the Defendant (Counterclaim Plaintiff) claim are dismissed, respectively.

2. The total costs of the lawsuit shall be borne by the Plaintiff (Counterclaim Defendant) and the remainder by the Defendant (Counterclaim Plaintiff) respectively.

3. The above paragraph 1(a) may be provisionally executed.

A. Main Action: The Defendant (Counterclaim Plaintiff; hereinafter “Defendant”) shall pay 34,456,564 won to the Plaintiff (Counterclaim Defendant; hereinafter “Plaintiff”) and 264,50,000 won with 5% per annum from July 5, 2008 to the date of delivery of a duplicate of the instant complaint; 20% per annum from the next day to the date of complete payment; 79,956,564 won per annum from February 16, 2009 to the date of delivery of a duplicate of the instant complaint; and 5% per annum from the next day to the date of complete payment; and 20% per annum from the next day to the date of complete payment.

B. Counterclaim: The plaintiff shall pay to the defendant 321,043,436 won with 5% interest per annum from September 19, 2007 to the service date of a copy of the counterclaim of this case, and 20% interest per annum from the next day to the day of complete payment.

2. Purport of appeal

A. Plaintiff: The part of the judgment of the court of first instance against the Plaintiff corresponding to the amount ordered to be additionally paid below shall be revoked. The Defendant shall pay to the Plaintiff 35,210,117 won and 20% interest per annum from July 11, 2013 to the date of full payment.

B. Defendant: The part against the Defendant in the judgment of the first instance as to the principal lawsuit and the part concerning the counterclaim shall be revoked. The Plaintiff’s claim as to the principal lawsuit is dismissed. The same shall apply to the purport of the counterclaim.

The reasoning for this Court’s explanation is as follows, and this part of the reasoning of the judgment of the first instance is as stated in the main sentence of Article 420 of the Civil Procedure Act, except for dismissal or addition as follows.

○○○○○○ 7 per week in the first instance judgment, each of the 6 pages 7 of the first instance judgment, refers to “○○ 7” to “△△△△,” “Defendant” from 10 to 2, “Plaintiff” to “Plaintiff,” “the 11th class 9 collateral security” to “the 12th class 2nd to 5th class “the Defendant” to “the 5th class per annum prescribed by the Civil Act” to “the 5th class”.

○ The following shall be added to the 15th page 9:

The Plaintiff asserts that the market price at the time of July 4, 2008 should be KRW 433,777,000,000.

According to Gap evidence Nos. 82-1 through 13, Gap evidence Nos. 83-1 and 2, the above auction procedure was revoked on July 9, 2008, and the defendant filed a report on purchase at the highest price of KRW 43,777,00 on June 30, 2008 with the above auction procedure for the real estate of this case, and the sale permission was decided on July 7, 2008. However, on July 4, 2008, the defendant filed an application for cancellation of the registration of the establishment of a neighboring mortgage in the plaintiff's name and the registration of the establishment of a neighboring mortgage in the non-party No. 3 in the non-party No. 3's name and completed the registration of the transfer of ownership on July 9, 2008. The defendant completed the registration of the transfer of ownership as above.

However, the above auction price reflects various special circumstances, and is not actually paid. In addition, even if the plaintiff himself complies with the assertion (Evidence A No. 89) made in the relevant civil procedure, the defendant provided the defendant with information on the completion of the registration of the establishment of a neighboring mortgage on the above real estate on the ground that "the defendant would have been able to receive the amount of KRW 400 million in the sale price because he would be able to receive the amount of KRW 400 million in the sale price." In light of this, it is insufficient to recognize that the above circumstances and the statement of evidence No. 89 as mentioned above reached KRW 43,77,00 in the market price as of July 4, 2008. Therefore, the plaintiff's above assertion is not acceptable.

6) The Defendant asserts that 200 million won out of the loan 500 million won No. 7 of the instant title No. 7 was lent to Nonparty 4 by himself, and that he demanded the Plaintiff to repay with Nonparty 4, and the Plaintiff provided the documents establishing the right to collateral security on the instant real estate with the Plaintiff’s payment of the money to Nonparty 4. Thus, the settlement was completed regarding the instant real estate related to Cheongdong-dong.

However, since it is not sufficient to recognize that there was an agreement for settlement as alleged by the defendant only with the statement of No. 3 written evidence, the above argument by the defendant cannot be accepted.

7) The defendant asserts that in relation to the first loan of this case, he actually contributed to KRW 70 million, and the plaintiff contributed KRW 130 million respectively, and that he lent KRW 200 million to Nonparty 1 (the Nonparty).

However, in light of the following circumstances, Gap evidence 12-16, Eul evidence 92-2 and Eul evidence 12-1 through 22-1, Eul evidence 1-5, and Eul evidence 20-1 through 22-4, evidence 20-1 through 22-2, evidence 1-1, evidence 1-2, and evidence 1-1 through 300 million won as to the real estate of this case, which is the secured debt of this case, the whole purport of the pleadings can be seen with the testimony of non-party 1, the witness of the court of the trial, and some testimony of non-party 5, non-party 6, and non-party 1, as seen earlier. Therefore, the defendant's assertion cannot be accepted.

① On April 20, 2015, after the date of the first instance trial, the Defendant submitted a copy of the loan certificate (No. 18-1), and a copy of the loan agreement (No. 18-2) on April 26, 2007, which entered the loan amount of KRW 200 million in the name of Nonparty 6 (debtor) and Nonparty 1 (joint guarantor). The Defendant asserted that, on April 27, 2007, the Defendant received the above copies from the Plaintiff and Nonparty 1 at the time when the right to collateral security was established on the real estate in Doldong-dong of this case, and that, on August 8, 2013, the Defendant asserted that the actual amount of the loan of this case was KRW 20 million in the actual amount of the loan of this case from August 27, 2007, it is difficult to obtain the above documents from the District Court on April 20, 2015 as evidence.

② The Defendant was investigated by the police in a case in which the Plaintiff was accused of embezzlement, etc., and stated that the Plaintiff’s share out of the first loan of this case was KRW 230 million.

③ Nonparty 1 stated that the Plaintiff had the right to collateral security at the same amount as the borrowed maximum debt amount with lending money.

As evidence submitted at the trial of the political party, the part of Non-party 1’s testimony is dismissed (the same shall apply to the witness’s reply submitted by the non-party 7) that is insufficient to recognize that the Plaintiff was granted a collateral security on real estate in order to secure his contribution out of the loans of this case ( Address 1 omitted).

2. Determination on the defense and counterclaim claim as to the main claim

A. Determination of the gist of the defendant's assertion and the claim for damages caused by tort

The reasoning for this Court’s explanation is as follows: (a) and (b) part of the reasoning of the judgment of the court of first instance, except for dismissal or addition as follows; and (c) thus, this Court shall accept it pursuant to the main sentence of Article 420 of the Civil Procedure Act.

From the bottom of ○○ 12, the “230,00,000 won” is “270,000,000 won”; from the bottom of 1 to 2; “270,000,000 won” is “the Plaintiff”; “the Plaintiff” is “the Defendant”; “the Plaintiff” is “the Defendant”; “the Plaintiff” is “the Defendant”; “the Defendant” is “the Defendant”; “the Defendant” is “the Defendant,” “the Defendant,” and “the Defendant” is “the Defendant,” respectively.

Then, following the first page 14, “The Defendant claimed that the amount he would receive to the Plaintiff from the preparatory document dated June 30, 2015, would be KRW 130 million from the settlement amount related to the first loan and KRW 79,956,564 from the settlement amount related to the second loan, and KRW 340,043,436 from which he claimed that the amount he would receive to the Plaintiff was deducted from KRW 550,000,000,000 from the settlement amount related to the second loan, but the Defendant did not expand the purport of the counterclaim accordingly).”

In the 00th 14th 11th 14, the phrase “the fact of summary indictment” is “the fact that a formal trial has been requested after receiving a summary order, but the conviction has become final and conclusive.”

The evidence additionally submitted at the ○○ trial, which is insufficient to recognize that the Plaintiff was deceiving the Defendant, shall be dismissed in addition to the statement of No. 21-5 and No. 23-1 and part of Non-Party 1’s witness of the trial.

B. Determination of the claim for damages due to breach of duty of care under a partnership agreement

1) Occurrence of damages liability

As seen earlier, the Plaintiff entered into a partnership agreement with the Defendant to jointly engage in a credit business. Such a partnership agreement constitutes an association under the Civil Act. However, considering the facts acknowledged earlier and the evidence Nos. 12-1, 77-3, 99, 2-2-4, 5, 6, 12, 13, 23, 39, 55, 69, 87, 84, 88, 17-20, 21, 37, 57, 60, 24-1, 24-2, and 3 of the evidence No. 17-1, 2, and 3, and 77-3 of the witness of the court of first instance, the Plaintiff’s refusal to lend money to Nonparty 1 as a member of the association, or failed to obtain the aforementioned amount of money from Nonparty 1 as a collateral, and the Plaintiff’s ability to verify the existence of the above loan and the value of the loan was not known.

① At the time of September 19, 2007 or on September 20, 2007, the Plaintiff received KRW 500 million from the Defendant and lent to Nonparty 1, but was not repaid the amount of KRW 3.2 billion to Nonparty 1.

② The Plaintiff asked the Defendant to lend KRW 80 million to Nonparty 1, and explained that he would lend KRW 300 million to Nonparty 1. However, the Plaintiff did not lend KRW 300 million to Nonparty 1 in reality, but did not dispose of the existing loan claim and refund to Nonparty 1. In addition, the Plaintiff paid KRW 230 million out of KRW 500 million to Nonparty 1 in the name of the principal and interest of the existing loan to Nonparty 1, and only KRW 270 million in the name of the Plaintiff’s principal and interest of the existing loan to Nonparty 1. As such, the Plaintiff did not notify the Defendant that 30 million was in possession of KRW 230 million. The Plaintiff did not notify the Defendant that 30 million was in possession of KRW 230 million,000,000,000,000 to Nonparty 1. The Plaintiff did not notify the Defendant of such fact.

③ In the criminal case seen earlier, the Plaintiff argued that the initial plan for the two-dimensional land was nonexistent, and that the content was presented to the Defendant, and that the agreement was made to lend money to Nonparty 1 after having changed the collateral with the land in Gyeyang-do. In order to secure the loan claim amounting to KRW 800 million, the Plaintiff already paid on September 19, 2007 the amount equivalent to KRW 270 million to Nonparty 1, which was already paid to Nonparty 1 on September 19, 2007, in relation to the land in Gyeonggi-do (name 2 omitted) and the land in Namyang-gu (name 2 omitted), Nam-gu, Seoyang-gu, the Government-si on September 21, 2001, regarding the ( Address 4 omitted) Apartment-gu, Donam-gu, Seoul Special Metropolitan City ( Address 4 omitted), which was set up a collateral security right with his/her own and Defendant respectively.

④ At the time of September 19, 207, 100, 100, 200 million won, 3rd priority livestock cooperatives (200 million won, 450 million won, 450 million won), 3rd priority foreign exchange banks (65 million won, 8th priority non-party 4, 5th priority 9 (170 million won, 30 million won, 70 million won, 1750 won, 70 million won, 500 won, 700 won, 1750 won, 400, 1750, 700, 7th priority collective security rights, and 12 (100 million won, 100 million won, 500 won, and 2.7 billion won, 705 billion won, and 14.7 billion won, which was the first priority of the Plaintiff’s registration of creation of a mortgage between the Plaintiff and the Defendant.

⑤ On the other hand, the Plaintiff asserts that the Plaintiff partially recovered the instant fourth loan while cancelling the right to collateral security. On the other hand, the Plaintiff asserted that the claim for the refund of the maximum amount of lease deposit and the claim for the right to collateral security was a large amount of lease deposit and the claim for the right to collateral security, which could not be recovered from the purchase price.

④ Nonparty 1 promised to cancel the registration of the establishment of the mortgage in the bank name while borrowing the instant loan from Nonparty 4. However, as seen above, the Plaintiff was not able to receive a reimbursement after lending the amount of KRW 3.2 billion to Nonparty 1, and the amount of additional loan to Nonparty 1 was substantially limited to KRW 270 million, so it appears that the Plaintiff could have been suspected that Nonparty 1 had the intent or ability to implement the said loan. As such, it is doubtful how to cancel the registration of the establishment of the mortgage on the land of ○○○ri-san ○○○○○○○○.

⑦ 담보물을 이 사건 ◁◁리 토지에서 위 ○○리 산 ◇◇ 토지와 (주소 2, 3 생략) 토지, ☆☆☆☆☆☆ 아파트 ▽▽▽동 ◎◎◎호로 교체하는 데 대하여 피고가 동의하였다고 하더라도, 이는 이미 소외 1에게 상당 금액이 지급된 후의 사정에 불과하거나, 피고가 원고로부터 소외 1의 변제능력 유무와 그가 제시한 담보의 가치에 관하여 충분한 정보를 제공받지 못한 상태에서 동의를 한 것이었다고 보인다.

2) Scope of liability for damages

A) Where one of the members of a partnership consisting of two members becomes liable for damages against the partnership due to an unlawful act, etc., and only the liquidation procedures for the distribution of the partnership property remain as a result of the completion of the partnership relations which make it impossible to achieve its objective impossible, other members may claim against the partner who committed the unlawful act for the distribution of the remaining property due to the termination of partnership relations in the form of claiming compensation for damages (see, e.g., Supreme Court Decisions 92Da2509, Apr. 24, 1992; 2004Da30682, Dec. 8, 2005; 201Da109937, Jun. 14, 2012).

As the amount of loans, etc. of this case cannot be recovered, the association relationship between the plaintiff and the defendant was terminated because it was impossible to achieve the purpose, and there was no work to be handled by the union except for the distribution of partnership property, and with respect to the amount of loans of this case 4, the plaintiff cannot be deemed to have made an investment. Thus, the defendant may claim against the plaintiff for a payment of damages amounting to KRW 500 million and damages for delay, in the form of claiming for a distribution of remaining property due to

B) However, the res judicata effect takes effect as to the amount set up against a set-off regardless of whether it is accepted or not (see, e.g., Article 216(2) of the Civil Procedure Act and Supreme Court Decision 2013Da46023, Nov. 14, 2013).

According to the evidence evidence evidence Nos. 84 and 93, in relation to loans Nos. 9 of this case, the plaintiff filed a lawsuit against the defendant claiming the amount of 20 million won distributed to the defendant (the Seoul Central District Court 2012 Ghana780892, the appellate court 2013Na35961, the appellate court 2014Da88567, the Supreme Court 2014Da8567). In this case, the defendant asserted that in relation to loans No. 4 of this case, he/she has the right to claim damages against the plaintiff due to tort or breach of the duty of care under the business contract, and that he/she brought an objection against the offset against the plaintiff. On November 13, 2014, the appellate court rejected the offset claim on the ground that the defendant's claim for damages is not acknowledged, and the defendant's appeal No. 3501, the defendant's appeal is dismissed on the ground that the defendant's appeal No. 13081,501, the grounds for appeal against the plaintiff's appeal.

Therefore, the part of the defendant's counterclaim and counterclaim claim that set the damages claim amounting to KRW 500 million due to the violation of the duty of care under the same business agreement is not permissible because it conflicts with the res judicata effect.

3) Set-off

A) The Plaintiff is obligated to pay the Defendant damages amounting to KRW 480 million and the damages amounting to KRW 480 million from September 20, 2007, which is the date of the occurrence of damages (the partial amount of September 19, 2007, which was paid to Nonparty 1, but it cannot be specified, and thus, the remaining amount cannot be specified) at a rate of 5% per annum as stipulated in the Civil Act. The Plaintiff’s claim and the Plaintiff’s claim for KRW 186,846,920 related to the first loan of this case were reached a offset on July 4, 2008, in which the Plaintiff’s claim occurred. The fact that the Defendant’s reply, including the declaration of set-off of both claims, delivered to the Plaintiff on August 14, 2013, is apparent in the record.

Therefore, both claims are extinguished within an equal amount retroactively on July 4, 2008. The above KRW 186,846,920 against the above KRW 500 million from September 20, 2007 to July 4, 2008; KRW 19,002,739 against the above KRW 500 million ( KRW 480,000 x 0.05 x 289 days x 289 days x 365 days; hereinafter the same shall apply); the remainder 167,84,181 won ( KRW 186,846,920 - KRW 19,02,739); the Defendant’s damage claim amount is appropriated for the principal; the Defendant’s damage claim amount is KRW 312,155,819 ( KRW 480,00,00,167,8184).

B) The Defendant’s remainder of damage claim and the Plaintiff’s claim amounting to KRW 79,956,56,564 relating to the amount of the second loan of this case reached an offset on February 16, 2009 where the Plaintiff’s claim arose. The fact that the Defendant’s reply, including the declaration of intent to offset both claims, was served on the Plaintiff on August 14, 2013 is as seen above.

Therefore, both claims are extinguished on February 16, 2009 within the same amount on an equal basis. The above KRW 79,956,564 is appropriated from July 5, 2008 to February 16, 2009 for damages for delay from July 16, 2009 9,706,763 won ( KRW 312,15,819 x 0.05 x 0.05 x 227 days/365 x 227 days). The remainder 70,249,801 won ( KRW 79,956, 564 - KRW 9,706,763 won) is appropriated for principal, and the amount of damages claimed by the Defendant is appropriated for the principal. The remainder of KRW 241,906,018 ( KRW 315,819, KRW 709, KRW 249,010).

C. Determination on the assertion of the claim for the agreed amount

The reasoning for this Court’s explanation is as follows, except for the following addition, it is consistent with the part of Article 3(c) of the reasoning of the judgment of the court of first instance. Thus, it is cited pursuant to the main sentence of Article 420 of the

○○ 18: “4.24,200,000 out of 494,710,000 won which the Defendant received from the Plaintiff on September 14, 2007, the Defendant added the amount of KRW 212,00,00 to the Plaintiff by having himself acquire the security solely with respect to the loan to Nonparty 14, the title of the instant table 6, and having paid KRW 212,00,000 to the Plaintiff. Nonparty 14 did not transfer the security and repaid the secured debt through the Plaintiff. As such, Nonparty 14 did not transfer the security, and thus, Nonparty 212,00,00,000 won out of the repayment was returned to the Plaintiff. However, there is no evidence to acknowledge that the Defendant paid KRW 212,00,000 to the Plaintiff as above.”

As evidence submitted in the ○○ political party trial, the Plaintiff’s statement No. 23-2 and testimony of Non-Party 5, Non-Party 3, and Non-Party 1 as well as Non-Party 1, respectively, are not sufficient to recognize that the Plaintiff partially recovered the loans of this case by cancelling the registration of creation of a mortgage on the ○○ ○○○○ ○○○○○○○○○○○○○○○○○ apartment ○○○○○○○○○○○○

D. Sub-committee

The plaintiff's claim against the defendant no longer exists, and the plaintiff is obligated to pay to the defendant 241,906,018 won for the remainder of damages, and to pay 5% interest per annum of 20% per annum under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings from the next day to the day of full payment, which is deemed reasonable to dispute the existence or scope of the plaintiff's obligation from February 17, 2009 to September 7, 2016.

3. Conclusion

The plaintiff's main claim is dismissed as without merit, and the defendant's counterclaim is accepted within the scope of the above recognition, and the remainder of the counterclaim is dismissed as it is without merit. Since the judgment of the court of first instance is partially different, the defendant's appeal is partially accepted, and the judgment of the court of first instance is modified as above.

Judges Lee Jae-won (Presiding Judge)