2013 Gohap7985 (Counterclaim loans)

2. B

2. The plaintiff (Counterclaim defendant)'s main claim and the remaining main claim of the plaintiff (Counterclaim defendant) B and the plaintiff (Counterclaim defendant)'s main claim against the plaintiff (Counterclaim defendant) are dismissed, respectively.

3. Of the litigation costs incurred by the principal lawsuit, the part incurred between the Plaintiff (Counterclaim Defendant) A and the Defendant (Counterclaim Plaintiff) is borne by the Plaintiff (Counterclaim Defendant), and 70% of the part incurred between the Plaintiff (Counterclaim Defendant) B and the Defendant (Counterclaim Plaintiff) is borne by the Plaintiff (Counterclaim Defendant) B, and 30% is borne by the Defendant (Counterclaim Plaintiff). The litigation costs incurred by the counterclaim are borne by the Defendant (Counterclaim Plaintiff).

4. Paragraph 1 can be provisionally executed.

Counterclaim: The plaintiffs shall jointly and severally pay to the defendant 76,047,760 won and the amount calculated by the ratio of 5% per annum from April 18, 2014 to the service date of a copy of the application for the purport of the counterclaim and the modification of the cause of the counterclaim of this case, and 20% per annum from the next day to the day of complete payment.

A. On June 2005, Plaintiff B agreed to jointly purchase an apartment and dispose of it and distribute the profit by selling it (hereinafter “instant investment agreement”).

B. On June 2, 2005, the Plaintiff B and the Defendant purchased from D each land of Seongbuk-gu Seoul and G and its ground (hereinafter “H real estate”) located within the business territory of the redevelopment association from D around June 2, 2005, in a joint purchase of KRW 249 million, and completed the registration for the transfer of ownership by one half of each share in the name of the Plaintiff and the Defendant.

C. The plaintiff Eul and the defendant paid the H real estate purchase price of KRW 249 million, KRW 100 million, KRW 40 million, KRW 77,825,00, and KRW 777,825,00 as interest-based relocation expenses, and KRW 100,00, KRW 31,75,000 as the money loaned as security (hereinafter "I apartment loan") to Seongbuk-gu Seoul, Seoul, 202, KRW 1004 (hereinafter "I apartment") owned by the defendant, and the remaining KRW 31,175,00 was borne by the above plaintiff. In addition, in the process of purchasing H real estate, the above plaintiff spent KRW 6,639,00 in total for various expenses, such as acquisition tax, registration tax, brokerage fee, etc.

D. On September 2, 2006, the Plaintiff B and the Defendant purchased as aground and completed the registration of ownership transfer in the name of the Defendant by purchasing from the JJ on September 22, 2006 the 4330,000 won (the actual payment amount is KRW 43,300,000,000,000,000 won (the remainder is the acquisition of the obligation to pay the sale price) of K Apartment 101, Dong 1303 (hereinafter “K Apartment”).

E. As the redevelopment project for H real estate was implemented, the Plaintiff B and the Defendant purchased the Seongbuk-gu Seoul Metropolitan L apartment 102 Dong 702 (hereinafter “L apartment”) from the above redevelopment association as the shares of its members. Of the sale price for K apartment, the sales price for K apartment was sold at KRW 48 billion to M on March 28, 2007 for the payment of intermediate payment and remainder, and was paid KRW 157,79,861 after deducting various expenses, including interest-free, interest-free, and relocation expenses from the sales price.

F. Of the above sale price of KRW 157,79,861, Plaintiff B used KRW 15 million as the cancellation price for N andO, the former purchaser of L apartment sales right, KRW 1.4 million as the brokerage commission for the sale of L apartment sales right, KRW 1.3 million as the intermediary commission paid for the purchase of K apartment, KRW 43,300,000 as the intermediate payment for K apartment on April 16, 2007, and KRW 56,66 million as part of the remainder of K apartment on October 1, 207, respectively. The above Plaintiff and the Defendant divided KRW 4 million as part of the profit distribution amount.

G. On November 3, 2007, the Defendant sold I apartment to P for the payment of the K apartment sale price in KRW 25 million, and then remitted the amount of KRW 17 million out of the remaining 12.7 million from the purchase price to the new bank account in the name of the Defendant managing the Plaintiff B (which refers to the account managing the above Plaintiff and the Defendant’s investment money; hereinafter “the new bank account”), and the remaining amount of KRW 20 million was delivered to the Plaintiff B for the use of taxes and various expenses for the sale of I apartment.

H. On January 16, 2008, the Defendant completed the registration of preservation of ownership of K apartment in the name of the Defendant, and on the same day, borrowed the above apartment as collateral and remitted it to the new bank account of this case to the new bank account (hereinafter “K apartment loan”). Around that time, the Defendant occupied the above apartment and has resided up to now.

I. On December 18, 2007, Plaintiff B withdrawn and used KRW 30,543,445 in order to pay interest on the intermediate payment loan, and KRW 30,919,330 in order to pay the remainder and its delay damages, respectively, from the new bank account of this case. On December 20, 2007, Plaintiff B withdrawn KRW 50,000 from the new bank account of this case, and used KRW 259,941,798 in order to pay interest on the intermediate payment loan.

[Ground of recognition] Facts without dispute, Gap 8, 16 evidence, Eul 1, 8, 10, 12, and 13 evidence, the purport of the whole pleadings

2. The parties' assertion

A. Demand for principal action

1) The plaintiffs' primary grounds for the claim

Since a partnership relationship is established between the plaintiffs and the defendant to jointly purchase apartment houses and dispose of them and distribute their marginal profits, the defendant is obligated to pay to the plaintiffs 127,762,89 won, corresponding to the investment ratio of the plaintiffs among the partnership property, as follows, with the settlement money following the termination of the above partnership relationship.

(a) Partnership property: 608,230,510 won in total;

(a) K apartment: 450 million won;

(b) H real estate investment return: 50 million won; and

(3) Claim for return of unjust enrichment equivalent to the rent for the Defendant due to the use and profit-making of K apartment, which is the property of the association: KRW 108,230510 (from January 16, 2008 to September 16, 2013)

B) Investment ratio of the plaintiffs: 42.74%

(1) The amount of investment by the plaintiffs: 130 million won

(A) 34.5 million won (=the purchase price actually paid 19.0 million won - the Defendant’s investment amount of KRW 74.5 million) at the time of purchase of H real estate

(B) Investment amounting to KRW 83,300,000 (=actual payment purchase price of KRW 433,300,000 + premium of KRW 40,000) at the time of purchase of K apartment sales right

(C) KRW 14.4 million borne by the Plaintiff B out of the interest on K apartment loans

(2) The defendant's investment amount: a total of KRW 177.1 million

(가) H부동산 매수 당시 투자액 7,450만 원[≒ I아파트 대출금 77,825,000원 - 매수 당시 원고들이 지출한 각종 비용 6,639,040원 중 피고의 분담분 3,319,520원)

(B) Investment amount at the time of purchase of K apartment sales right: KRW 12.6 million (= KRW 97 million deposited in the new bank account of the instant I apartment sales price + KRW 5.6 million remaining remaining balance after the Defendant received and used it as various sales costs)

(3) Investment ratio of the plaintiffs: 42.74% [130,2200,000 investment amount of the plaintiffs (130,000,000 investment amount of the plaintiffs + KRW 132,22 million + KRW 177,100,000 investment amount of the defendant]

C) The settlement amount to be received from the Defendant KRW 127,762,89 (i.e., union property KRW 608,230,510, X42.74/100)

2) Plaintiff B’s conjunctive claim

If the instant investment agreement was concluded between the Plaintiff B and the Defendant, and only between the said Plaintiff and the Defendant, the Defendant is obligated to pay to the said Plaintiff the settlement amount of KRW 12,8970,000 due to the termination of the partnership relationship as follows.

A) Unclaimed amount out of the Plaintiff B’s investment amount: KRW 68.97 million (i.e., investment amounting to KRW 34.5 million at the time of purchase of H real estate + KRW 70.7 million investment + interest amounting to KRW 14.4 million for K apartment loans - KRW 50 million withdrawn and used from the new bank account of this case, and KRW 50 million in the claim as to the primary cause of claim, which was partially reduced by only the investment amount at the time of purchase of K apartment tickets)

B) Claim for return of unjust enrichment equivalent to the rent for the Defendant due to the use and profit-making of K apartment, which is the property of the association: KRW 60 million (from January 1, 2008 to June 30, 2014) out of KRW 120 million, which is the above Plaintiff’s share ratio (50%)

B. The defendant's counterclaim and counterclaim

The Defendant, as set out below, has a total of KRW 76,047,760 against the Plaintiffs (i.e., loans, etc. claims KRW 144,906,066 - Settlement of Accounts Amounting to KRW 68,858,306). As such, the Defendant, with automatic bonds, offsets the Plaintiffs’ claim for settlement of accounts against the amount equal to that of the Plaintiffs’ above settlement of accounts, and seeks joint payment of the said amount against the Plaintiffs as a counterclaim.

1) Claims such as loans owed by the Defendant against the Plaintiffs

A) On July 16, 2005, the Plaintiff agreed to pay KRW 23 million out of the I apartment loans one month after the date of lease and to bear interest thereon. However, even though the Plaintiff was paid KRW 1.7 million out of the interest, the Plaintiff was not paid the principal and KRW 23 million and the remainder interest and delay damages (as of April 18, 2014).

B) On December 18, 2007, the Plaintiff agreed to pay KRW 50 million, among K Apartment loans, one month after the date of lease, and agreed to pay interest thereon to the Plaintiffs. However, the Plaintiff did not receive the principal amount of KRW 50 million and interest thereon (as of April 18, 2014).

C) The Plaintiffs paid only KRW 870,000 out of the interest on the Plaintiffs’ share of KRW 40,000,000, as well as the remaining KRW 925,322.

D) On December 18, 2007, the Plaintiffs received KRW 20 million from the Defendant from the sales price of I Apartment, and used it for taxes and various expenses related to the sale of the said apartment, and did not refund KRW 5,610,347.

E) Although interest on K apartment loans should be shared by the Plaintiffs and the Defendant, only the amount of KRW 14.5 million out of the share of the Plaintiffs is paid and the remainder of KRW 18,177,031 is not paid.

F) Although the Defendant’s personal money paid 30,543,445 won as interest on intermediate payment and delay damages for the remainder of K apartment sales price, 919,30 won as well as 12,79,850 won as interest on intermediate payment, and 45,462,625 won as well as registration tax and 12,79,850 won as at the time of the purchase of K apartment, the Defendant did not pay 22,731,312 won as part of the Plaintiffs’ share (50%) among them.

G) Therefore, the Defendant’s loans and other claims against the Plaintiffs amounting to KRW 144,906,066 in total (i.e., loans amounting to KRW 23 million + KRW 8,825,068 in interest and delay compensation + KRW 50,000 in loan + KRW 15,636,986 in interest on the relocation expenses for interest + KRW 925,322 in interest on the relocation expenses for interest + KRW 5,610,347 in the sales price for the I apartment + KRW 18,17,031 in interest on the K apartment + KRW 18,17,031 in interest on the K apartment loan + KRW 22,731,312 in all kinds of expenses paid by the Defendant with respect to K apartment.

2) The defendant's obligation to settle accounts against the plaintiffs

A) The amount of investment by the plaintiffs: 84,300,070 won

B) Damages to be borne by the Defendant: 15,441,764 won (=38,604,411 won x 40/100 x 488,604,411 won for the purchase of K apartments, but the current market price was 450,604,411 won, which is merely 38,604,411 won, and thus, the Plaintiffs should bear 15,441,764 won, an amount equivalent to the investment ratio (40%) of the Plaintiffs among the above damages.

C) Debt for settlement: 68,858,306 won (=84,300,070 - 15,441,764)

3. Judgment on the plaintiffs' primary main lawsuit and the defendant's main claim against plaintiff A

A. First, there is no evidence to acknowledge that Plaintiff A is a party to the instant investment agreement or is a member of the association whose members are Plaintiffs and Defendant.

B. In addition, each statement of Gap evidence Nos. 16, Eul evidence Nos. 3, 5, 6, 10, 11, Eul evidence Nos. 14-1, Eul evidence Nos. 19, Eul evidence Nos. 37-1 through 4, Eul evidence Nos. 38, and 39 is insufficient to recognize that the plaintiff jointly borrowed money from the defendant in relation to the investment agreement of this case with the plaintiff No. 16, agreed to share half of the defendant's expenses, or failed to return part of the apartment sale price, and there is no other evidence to prove otherwise.

C. Therefore, the plaintiffs' primary main claim against the defendant and the defendant's counterclaim against the plaintiff A are without merit (in the case of the plaintiff B, the purport of claiming the settlement amount following the termination of the partnership relationship between the plaintiff B and the defendant as a member may be deemed to be included in the main claim. However, since the plaintiff's primary claim is asserted as a separate preliminary claim, it shall be determined in the part concerning the conjunctive claim).

4. Judgment on the plaintiff B's conjunctive main claim

A. Relevant legal principles

1) Where one member withdraws from a two partnership, the partnership relationship is terminated, but the partnership is not dissolved, barring any special circumstance, and the existing joint business may continue to exist as the remaining property belongs to the sole ownership of the partnership member (see, e.g., Supreme Court Decision 2004Da49693, 49709, Mar. 9, 2006).

2) In a case where one member withdraws from two cooperatives, the calculation due to withdrawal between the withdrawing person and the remaining person shall be made in accordance with Article 719(1) and (2) of the Civil Act, barring special circumstances, the amount equivalent to the withdrawing person’s share out of the partnership’s property evaluated based on the “the status of the partnership’s property at the time of withdrawal” shall be returned in cash, and the ratio of shares of the relevant union member shall be calculated based on the “ratio of distribution of profits and losses inside the partnership” unlike the ratio of the value of the assets actually invested in the case of the liquidation of the partnership (see the above Supreme Court Decision 20

(b) Method of calculating settlement money following the establishment and termination of the partnership relations; and

1) According to the facts acknowledged in paragraph 1, the relationship between the Plaintiff B and the Defendant was established through the instant investment agreement to jointly purchase apartment and dispose of it and distribute the marginal profits.

2) Although the Plaintiff B’s assertion is somewhat ambiguous, in light of the fact that one of the two members seeks the payment of settlement or the return of investment funds on the premise that the Defendant continued to hold K apartment, which is the partnership’s property, it appears to the purport of expressing his intention to withdraw from the association of this case and seeking the payment of settlement funds upon the termination of partnership relations against the remaining Defendant.

3) Meanwhile, on the other hand, the fact that the legal brief dated March 14, 2013 reached the Defendant on March 18, 2013 is apparent in the record, which contained the Plaintiff’s expression of intent to pay settlement or return investment funds on the premise that the Defendant continues to hold the apartment.

4) Therefore, the Plaintiff’s withdrawal from the association of this case occurred on March 18, 2013, and barring any special circumstance, the remaining Defendant, who is the withdrawing party, is obligated to return to the Plaintiff the amount equivalent to the above Plaintiff’s share, i.e., the ratio of sharing profits and losses inside the association, out of the property of the association of this case assessed based on the partnership’s property status as of March 18, 2013.

C. The financial status of the instant association at the time of March 18, 2013

(a) Active property: Total of 561,019,405 won;

A) K apartment: 450 million won at the market price around August 30, 2013;

[Grounds for recognition] Results of appraiser Q’s market price appraisal, the purport of the entire argument

B) Claim for return of unjust enrichment equivalent to the rent for the Defendant: KRW 61,019,405

(1) The Defendant continued to reside in the K Apartment, which is the property of the instant association, from January 16, 2008 to March 18, 2013 with his/her family members and used them or profit therefrom. The Defendant, from January 16, 2008 to November 30, 2009, was 1,46,670 won, from December 16, 2008 to November 30, 209, 1,700,000 won from December 1, 201 to November 30, 201, or was able to dispute over the overall appraisal of the parties from December 1, 201 to December 30, 201, 1,60,000 won from November 1, 201 to December 30, 201, 206 to June 1, 2016, 2017;

Therefore, barring special circumstances, the defendant is obligated to pay the association of this case unjust enrichment equivalent to the rent due to the use and profit-making of K Apartment corresponding to the above residence period.

(2) As to this, since the Defendant agreed with Plaintiff B to reside in K Apartment without compensation, the Defendant is not obligated to pay unjust enrichment.

In addition to the respective descriptions of the evidence Nos. 40 and 41 (including each number), partial descriptions of the evidence No. 24, and witness R’s testimony, the defendant sold the I apartment owned by the defendant and his family members residing in the defendant around October 2007, before selling I apartment, and used the purchase price for the sale of K apartment, but in the future, the defendant and his family members agreed to reside in K apartment for two years, which are necessary to be exempted from capital gains tax when selling K apartment, and according to this, it is recognized that the above plaintiff and the defendant agreed to reside in K apartment without compensation by the defendant for two years from the date of completing the registration of ownership preservation in the name of the defendant as to K apartment.

However, with respect to the fact that the defendant agreed to live free of charge for the period exceeding the above two years, the testimony of the witness R alone is insufficient to recognize it, and there is no other evidence to acknowledge it.

(3) Therefore, the instant association does not have a claim for return of unjust enrichment equivalent to the rent for the period from January 16, 2008, when the registration of initial ownership was completed in the Defendant’s name, to January 15, 2010, which was two years from January 16, 2008. However, the instant association has a claim for return of unjust enrichment for the period from January 16, 2010 to March 18, 2013, which is the date of withdrawal of the said Plaintiff.

The amount shall be 61,019,405 won [the aggregate amount shall be 61,00 won = 17,767,741 won (the amount shall be 15,170,000 won per month from January 16, 201 to November 30, 2010; the same shall apply hereinafter] + 19,20,000 won (the amount shall be 12 months from December 1, 201 to November 30, 201, and 1.6 million won per month) + 18,80,040 won (the amount shall be 12 months from December 1, 201 to November 30, 201 to 1,56, 700 won) + 30,000 won (the amount shall be 16,70,000 won per month; hereinafter the same shall apply) + 19,200,000 won per month;

C) Claim for return of unjust enrichment against Plaintiff B: KRW 50 million

Since the private theory that Plaintiff B withdrawn KRW 50 million from the new bank account of this case on December 20, 2007 and used individually was recognized in paragraph 1, the association of this case has a claim for return of unjust enrichment of KRW 50 million against the Plaintiff.

2) Small property: K apartment loan obligation amounting to KRW 280 million.

【Ground for Recognition: No dispute exists】

3) Partnership property at the time of Plaintiff B’s withdrawal: 281,019,405 won (affirmative: 561,019,405 won - 280 million won of passive property)

D. The settlement money that the defendant must pay to the plaintiff B

1) 손익분배비율

제1항에서 인정한 사실들 및 기록상 명백한 사실들을 통해 알 수 있는 다음과 같은 사정들을 종합해 보면, 원고 B과 피고는 이 사건 조합 내부의 손익분배비율을 각 50%로 약정한 사실이 인정된다.

A) The Plaintiff B and the Defendant distributed the same amount of KRW 8 million among the profits accrued from H’s real estate in the same way.

B) Plaintiff B asserts that half of the expenses he paid should be borne by the Defendant during the process of purchasing H real estate, and the Defendant also asserts that half of the interest on the relocation expenses for H real estate should be borne by the Plaintiff.

C) The fact that both the Plaintiff B and the Defendant should share one half of the interest on the K apartment loans.

D) Plaintiff B claimed against the Defendant only half of the amount of unjust enrichment equivalent to the Defendant’s rent due to the use and profit-making of K apartment, and the Defendant also claimed that half of the acquisition tax and registration tax on K apartment should be shared by the said Plaintiff.

(ii)the amount of settlement;

Therefore, barring any other circumstances, the Defendant is obligated to pay the Plaintiff B a sum of KRW 140,509,702 (i.e., union property 281,019,405 KRW 1/2) with the settlement of accounts due to the withdrawal from partnership.

5. The defendant's counterclaim against set-off and the plaintiff B's counterclaim against set-off

A. The defendant's automatic claim

1) Loans of KRW 23 million on July 15, 2005, interest thereon, and damages for delay on loans of KRW 23 million

가) 앞서 인정한 사실들 및 갑 16호증, 을 10, 19호증의 각 기재에 변론 전체의 취지를 더하여 인정되는 다음과 같은 사정들, 즉 ①원고 B과 피고 사이에서 약정된 조합 내부의 손익분배비율이 50:50이고, 여기에 투자과정에 나타난 제반 사정 등을 고려해 볼 때, 이 사건 투자약정 당시 합의된 투자비율 역시 50:50일 것으로 추정되는 점, ②H아파트 매수대금 중 실지급한 1억 900만 원은 피고의 I아파트 대출금 77,825,000원과 위 원고가 출연한 31,175,000원으로 조성되었는데, 피고의 주장과 같이 I아파트 대출금 중 2,300만 원을 피고의 위 원고에 대한 대여금으로 처리하면 원고의 투자금은 54,175,000원, 피고의 투자금은 54,825,000원이 되어 투자비율이 거의 50:50이 되는 점, ③위 원고가 I아파트 대출금에 대한 이자로 5회에 걸쳐 총 117만 원의 이자를 납부한 점(위 원고는 이것이 유이자이주비에 대한 이자라고 주장하나, 위 이주비에 대한 이자는 이와 별도로 지급하였다) 등을 종합해 보면, 피고는 2005, 7, 15.경 원고 B과 사이에 위 원고가 피고로부터 I아파트 대출금 중 2,300만 원을 빌려 위 원고의 투자금을 출연하는 것으로 하고, 그에 대한 이자 역시 위 원고가 부담하기로 약정한 사실이 인정된다.

B) However, considering the overall purport of the pleadings as to Gap evidence Nos. 16 and Eul evidence Nos. 19, unlike the above agreement, the above plaintiff paid 170,000 won and paid the remainder 2,385,233 won of interest accrued from the above loan Nos. 3,55,233 until I apartment loans are repaid, and the defendant did not pay the remainder 2,385,233 won.

C) In the case of damages for delay with respect to the above loan claim 23 million won, since there is no evidence to prove that an agreement was made on the due date, this constitutes a claim with no fixed time limit, and thus, there is an obvious damages for delay from July 11, 2012, which contains a copy of the written reply dated 4, 2012, which contains the Defendant’s declaration of intent to repay the above loan.

D) Therefore, the Defendant has the above Plaintiff’s claim for damages for delay calculated at the rate of 5% per annum under the Civil Act from July 11, 2012 to the date of full payment (the amount equivalent to half of the annual apartment sales price of KRW 1.7 million invested in the instant association by transferring the said amount to the new bank account from July 11, 2012). The amount equivalent to half of the annual apartment sales price of KRW 1.7 million invested in the instant association by the Defendant is also the amount equivalent to the above I apartment loans of KRW 23 million from the said Plaintiff, and there is a possibility that the said Plaintiff contributed to the said Plaintiff’s investment amount. However, the Defendant did not make a separate judgment on this portion because it did not make a offset or counterclaim a claim for damages).

2) Claim amounting to KRW 50 million and interest equivalent thereto on December 18, 2007

A) As to the fact that the Defendant lent KRW 50 million out of K apartment loans to the Plaintiff on December 18, 2007, and agreed to pay interest thereon to the said Plaintiff, it is insufficient to recognize it solely on the basis of the outcome of the order to submit financial information to the new bank South Korea-Namdong branch in this court, and there is no other evidence to acknowledge it.

B) However, the Defendant’s above assertion contains the purport of seeking the return of KRW 50 million from the new bank account of this case in which K apartment loans were deposited, to the new bank account of this case on December 20, 2007. In the event one member withdraws from two cooperatives, the claim against the withdrawing party of the association shall belong to the remaining person, and the remaining person may offset the claim against the refund of union property equivalent to the shares of the withdrawing party by using the automatic claim (see, e.g., Supreme Court Decision 2004Da49693, Mar. 9, 2006).

On the other hand, the instant union had a claim for return of unjust enrichment equivalent to KRW 50 million against the said Plaintiff. Thus, the said claim for return of unjust enrichment was reverted to the Defendant on March 18, 2013, which is the date of withdrawal of the said Plaintiff.

(3) A claim equivalent to interest on the 40 million Won for the interest on H real estate moving expenses.

A) If the purport of the entire argument is added to the statements in the evidence Nos. 5 and 6, it is recognized that Plaintiff B paid only 870,000 won out of the interest of KRW 3,706,774 on May 3, 2007, which is the repayment date, even though the Defendant agreed with the Defendant to share half of the interest on KRW 40,000,000 for the relocation expenses of H real estate.

B) Therefore, the above Plaintiff is obligated to pay KRW 925,322 to the Defendant out of KRW 983,387 calculated by deducting KRW 870,000,000 already paid from the interest amount (i.e., KRW 3,706,774 won/2) that it agreed to share.

4) Claim for return of the sales price of I apartment

A) Plaintiff B received KRW 20 million out of the sales price of I apartment to use for taxes and various expenses for the sale of I apartment, from the Defendant, and KRW 5,610,347 of the sales price of I apartment. After using it for the above purpose, the remaining KRW 5,610,347 of the sales price was not returned to the Defendant, but it is recognized by the purport of the entire pleadings, since there is no dispute between the parties or by the entire purport of the pleading. Thus, the Defendant has the right to return KRW 5,610,347 of the sales price against the above Plaintiff.

B) The above plaintiff asserted that he used the above balance to pay interest on K apartment loans for the defendant, but there is no evidence to acknowledge it.

(v) claims equivalent to interest in the amount of KRW 280 million for K apartment loans;

A) There is no dispute between the parties that the interest on the K apartment loans ought to be shared by both the Plaintiff B and the Defendant.

B) With respect to K apartment loans of KRW 280,000,000,000 from January 18, 2008 to March 18, 2014, the date of the loan, the following interest amounts to KRW 67,260,102,00,000,000 for the above Plaintiff from January 18, 2008 to March 18, 2014, which is the date of Plaintiff B’s withdrawal, the fact that the Defendant paid the remainder does not conflict between the parties, or that the Defendant paid the remainder by adding the whole purport of the pleadings to the entries in evidence Nos. 37-1 through 4, and evidence

(a) year 2008: 17,891,372 won;

(b) year 2009: 10,573,929 won;

(c) year 2010: 9,768,545 won;

(4) From January 2011 to November 2011: 9,914,648 won

(5) From December 2011 to March 18, 2013: 19,111,608 won (=21,159,281 won x (280 million / 310 million / 300 million))

[The interest that was paid from December 201 to March 18, 2013 includes KRW 30,000,000,000,000,000,000,000, which was personal and used by the Defendant for personal loan, was deducted and calculated. The amount of KRW 1,270,889 on December 1, 201 + KRW 15,369,053 on December 1, 2012 + KRW 15,369,053 on February 1, 2013 + KRW 3,76,116 on February 3, 206 + KRW 753,223 on March 75, 2013 (monthly 1,297,218, 18/31 on March 21, 201) = KRW 21,159,281 on March 1, 2013];

C) Therefore, the Defendant has a claim amounting to KRW 19,130,051, which is equivalent to KRW 33,630,051 (=67,260,102/2) calculated by deducting KRW 14,50,000 paid by the said Plaintiff from the above interest amount (=67,260,102/2).

6) Claim concerning K apartment as to the portion of the Plaintiff B’s share among the various costs incurred by the Defendant

A) With regard to the fact that the Defendant spent 30,543,445 won as interest on intermediate payment and late payment damages for the remainder of K apartment sales price, 919,30 won as interest on intermediate payment, and 12,79,850 won as an intermediary fee at the time of the purchase of K apartment, and 1.2 million won as acquisition tax and registration tax at the time of the purchase of K apartment, it is not sufficient to acknowledge this by only the descriptions in the evidence Nos. 10 and 11, and there is no other evidence to acknowledge this otherwise.

Rather, it was already recognized in paragraph (1) that interest 30,543,445 won for K apartment intermediate payment and damages for delay 919,330 won for remainder payment was paid from the new bank account of this case, which was deposited in KRW 17,700,000,000 for I apartment loan, as the money withdrawn on December 18, 2007.

In addition, the facts found in paragraph (1) are as follows: ① cancellation fee of KRW 157,79,861 out of the actual receipt amount of the sale of the right to sell a L apartment, KRW 800,000,000,000 for the former purchaser; KRW 1,400,000 for the sales of the right to sell the above and the defendant; KRW 1.3 million for the sales of the right to sell the K apartment; KRW 1.3 million for the sale of the right to sell the K apartment; KRW 47,360,00 for the remainder of KRW 1,199,861; ② The remainder of KRW 32,50,000 for the remainder of KRW 17,00,000 for the new bank account of KRW 2,80,000 for the loans of KRW 38,70,000,000 for the above 75,000,000 for the loans of KRW 971,394,504,500.

However, the evidence Nos. 2, 3, 25, 26, 27, 29, and 7, and evidence Nos. 1, 20,000 won transferred to the seller’s account at the time of the purchase of the K Apartment which is recognized by adding the whole purport of the pleadings to the witness J’s testimony, and 6,639,040 won for all kinds of expenses incurred by the said Plaintiff in the process of purchase of H apartment, and 12,79,850 won for K apartment acquisition tax and registration tax as claimed by the Defendant, and 1.2 million won for brokerage fees at the time of purchase of the right of purchase of the right of purchase, the above K Apartment acquisition tax and registration tax as claimed by the Defendant, and brokerage fees, are likely to have been paid from the balance of the investment.

7) Total amount of automatic bonds

Ultimately, the Defendant’s claim against the Plaintiff B as offset amounting to KRW 101,841,774 (= KRW 23 million loans as of July 15, 2005 + interest KRW 2,385,233 on the loans as of July 15, 2005 + KRW 790,821 for delay damages (from July 11, 2012, the day following the payment due date until March 18, 2013), + a claim for return of unjust enrichment amounting to KRW 50,000,000 that was withdrawn and used from the new bank account of this case + interest rateing to KRW 925,322 for oil relocation + interest rateing to KRW 5,610,347 + interest rateing to K apartment loans 19,130,051].

(b) Set-off and termination of each claim;

1) As seen earlier, among the Defendant’s automatic credit against Plaintiff B, the maturity period of KRW 23 million as of July 15, 2005 is July 10, 2012, and the remainder of the claims is a claim with no fixed deadline. Since the Defendant’s claim for settlement of accounts against the Defendant, which is a passive claim, was a claim with no fixed deadline set on March 18, 2013, the both claims were set off on the same day after the arrival of March 18, 2013.

2) Meanwhile, on the other hand, the fact that the copy of the preparatory document as of April 2, 2013, which was served on the above plaintiff on April 3, 2013, including the defendant's declaration of intent to offset each of the above claims against the above plaintiff by the automatic claim against the above plaintiff against the amount equal to the above plaintiff's claim for settlement of accounts, is apparent in the record, and thus, the above plaintiff's claim for settlement of accounts amounting to KRW 140,509,702 retroactively to the above plaintiff on March 18, 2013, is extinguished within the extent equal to the above claim amount of KRW 101,841,774, as of March 18, 2013. The defendant's counterclaim is justified within the extent of the above recognition, and all of the counter-claim claims are without merit.

C. Sub-committee

Therefore, the Defendant is obligated to pay damages for delay calculated at each rate of 38,667,928 won (=140,509,702 won - 101,841,774 won) and 20% per annum under the Civil Act from July 10, 2014 to September 5, 2014, which is the day following the day when a copy of the application for modification of the purport of the claim and the cause of the claim was served on July 9, 2014, which is the day when the Defendant delivered the application for modification of the cause of the claim, to Plaintiff B, for dispute as to the existence or scope of the obligation.

6. Conclusion

Thus, the plaintiff B's conjunctive main claim is reasonable within the above scope of recognition, and the plaintiffs' primary main claim and the defendant's counterclaim against the plaintiffs are without merit.

Judges Lee Enuri

Judges Park Jae-chul