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(영문) 광주고등법원 2019.08.23 2018나24775

약정금

Text

1. Revocation of the first instance judgment.

2. The Defendant’s KRW 300,000,000 for the Plaintiff and its related expenses from August 1, 2006 to July 1, 2016.

Reasons

1. Basic facts

A. On November 2003, the Plaintiff lent KRW 22,450,000 to C (which is the father of Defendant E’s representative) and completed a notarial deed as to KRW 300,000 from C on April 27, 2006, and accordingly, filed a lawsuit claiming a contract amount against C around 2016.

(C) On February 1, 2017, the judgment of Gwangju District Court rendered a judgment that “C shall pay to the Plaintiff 5% per annum from August 1, 2006 to July 12, 2016, and 15% per annum from the next day to the date of full payment” (hereinafter “the previous judgment of this case”) that “The amount in favor of the Plaintiff was determined at that time.” This judgment became final and conclusive at that time.

B. On June 24, 2011, C established Defendant Company for the purpose of arranging the acquisition of real estate at auction sale at a capital of one million won, and registered Do, one’s dependent, as an internal director, as an auditor, as an internal director, and on March 18, 201, E assumed office as an internal director of the Defendant Company.

[Ground of recognition] Facts without dispute, Gap evidence 1, Gap evidence 3-1, Gap evidence 3-1, part of witness C of the first instance trial, the purport of the whole pleadings

2. The parties' assertion

A. Plaintiff 1) The Defendant Company, the primary cause of the claim, is a company established formally for the purpose of evading obligations or compulsory execution by C, and in fact, the external form of the company is limited to C’s private enterprise behind it, and as it was used as a means of avoiding the application of the law to C, it constitutes a corporate nullification or abuse of corporate personality. Therefore, the Defendant Company is obligated to pay the Plaintiff the same obligation as the obligation it owes to the Plaintiff. Thus, the Defendant Company is obligated to pay the Plaintiff the amount of the previous judgment, KRW 300,000,000, which is the amount of the previous judgment, and its delay damages. (ii) Even if not, even if not, it is the primary cause of the claim, C has already been in excess of its liabilities.