(a) As to KRW 80,00,000 and KRW 10,000 among them, the Defendant shall jointly and severally with Co-Defendant C of the first instance trial, 5% per annum from October 11, 2016 to June 28, 2017; 15% per annum from the next day to the date of full payment; 10,000,000 per annum from October 11, 2016 to June 7, 2018 to the date of full payment; and 15% per annum from the next day to the date of full payment.

shall pay the money by means of money.

B. The plaintiff's remaining claims (including the part extended from the trial) are dismissed.

2. One-third of the total litigation costs shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

3. Paragraph 1(a) of this Article may be provisionally executed.

The Defendant paid 120,00,000 won to the Defendant jointly and severally with Co-Defendant C of the first instance trial from May 15, 2016 to the delivery date of a copy of the complaint of this case, and 5% interest per annum from the next day to the day of complete payment, and 15% interest per annum from the next day to the day of complete payment (the damages for delay as to 120,000,000 won shall be deemed to have extended the purport of the appeal in accordance with the purport of the appeal. The Plaintiff appealed against Co-Defendant C of the first instance trial, but the decision of compulsory adjustment as of January 16, 2018 became final and conclusive on February 17, 2018, and only the Defendant left as the appellant).

2. Purport of appeal

Of the judgment of the court of first instance, the part against the plaintiff shall be revoked. The defendant shall pay 50,00,000 won and 120,000,000 won jointly and severally with the co-defendant C of the court of first instance to the service date of a duplicate of the complaint of this case, and 15% per annum from the next day to the day of complete payment (the plaintiff shall state the amount claimed as the amount of appeal, and 120,000,000 won per annum from the next day to the day of complete payment (the plaintiff shall arrange the purport of appeal in light of the purport of appeal and the quoted amount of the judgment of the court of first instance).

The reasoning of this court's judgment is identical to that of the court of first instance except for the dismissal under paragraph (2) below, and thus, it is accepted in accordance with the main sentence of Article 420 of the Civil Procedure Act (Provided, That the part concerning co-defendant C of the first instance court, which is separately determined, is excluded)

2. Parts in height:

The "Defendants" in the judgment of the court of first instance shall be deemed to be "Defendants and Co-Defendant C of the court of first instance", and "Defendant C" shall be deemed to be "Co-Defendant C of the court of first instance."

○ Heading 4 to 17 of the first instance judgment are as follows.

(iii) reduction of penalty;

There is an agreement between the parties to pay a penalty for default, if any,

In a case where the penalty is scheduled to be paid, whether it is a penalty for breach of contract or a penalty for breach of contract is a matter of interpretation of intent to individually determine in a specific case by comprehensively taking into account the content of a disposition document, such as a written contract, and the progress of the conclusion of a contract. Penalty for breach of contract is presumed to be an estimate of the amount of damages under Article 398(4) of the Civil Act; however, special circumstances where the agreement between the parties is difficult to deem that the agreement between the parties is intended to compensate for or compensate for the damage caused by nonperformance of obligation, especially where there exists a separate provision on liquidated damages or where the premise of actual damage exists, and where there is a separate provision on liquidated damages, if the provision on liquidated damages is interpreted as an estimate of damages, the penalty for breach of contract shall be deemed to be a penalty for breach of contract (see, e.g., Supreme Court Decision 2013Da8294,

Article 398(2) of the Civil Act provides that the court may reduce the estimated amount of compensation for damages in an unreasonable and excessive manner, and does not exclude application to nonperformance of monetary obligations. In addition, Article 6 of the Interest Limitation Act provides that the court may reduce the estimated amount of compensation by up to a reasonable amount if the parties have acknowledged that the estimated amount of compensation for nonperformance of monetary obligations for the purpose of money is unjustifiable. Therefore, in cases where a separate agreement is made on delay of performance regarding monetary obligations, this is subject to reduction as an estimated amount of compensation for damages (see, e.g., Supreme Court Decision 2017Da228762, Aug. 18, 2017).

With respect to the instant case, the health care unit, Gap evidence No. 1, and the purport of the whole pleadings

On April 14, 2016, when the Plaintiff lent KRW 60,000,00 to the Defendant on April 14, 2016, it can be acknowledged that there is a provision on the penalty for breach of contract with the effect that the Plaintiff would make reimbursement until May 14, 2016 and compensate for the amount as a result of delay. In addition, when considering that there was no separate provision on interest or delay damages at the time of the above lending, it is reasonable to deem that the said agreement is an estimate for the amount of damages under Article 398 of the Civil Act in preparation for delay of the Defendant’s obligation to repay borrowed money, and any other special circumstance to regard it as a penalty

Furthermore, considering all the circumstances indicated in the instant pleadings, such as the developments and scale of the instant loan, and the period of repayment thereof, the short-term period of the Defendant’s failure to repay the loan 30 days after 30 days, the background leading up to the Defendant’s failure to repay the loan, arrears interest rate, and the maximum interest rate under Article 2(1) of the Interest Limitation Act (25% per annum), the liquidated damages amount of KRW 60,000,000 shall be deemed unfairly excessive. Provided, That it is reasonable to reduce the liquidated damages amount of the instant loan by KRW 20,000,000 in consideration of the circumstances in which the Defendant did not repay the loan from April 14, 2016 to the date of closing argument at the trial.

4) Sub-committee

Therefore, the Defendant jointly and severally with Co-Defendant C of the first instance trial to the Plaintiff: (i) KRW 80,00,000 + KRW 10,000,000, which is the part cited in the first instance judgment, out of the estimated amount of damages; and (ii) KRW 10,000,000, which is the part cited in the first instance judgment, out of the estimated amount of damages; (iii) as of October 11, 2016, which is the day following the final delivery date of the complaint of this case, it is reasonable to dispute as to the existence and scope of the Defendants’ obligation to pay damages; (iv) KRW 5% per annum prescribed in the Civil Act from the date of the first instance judgment to June 28, 2017; and (v) KRW 15% per annum from the next day of the next day to the date of the full payment; and (v) the obligor is not obliged to pay damages at the rate of KRW 20,000,000,000 for damages.

Furthermore, the Plaintiff sought damages for delay from May 15, 2016, which is the day following the due date for reimbursement of KRW 60,000,000 for the instant loan. However, in cases where the Plaintiff intended the amount of damages for nonperformance between the parties, the obligee may only claim the expected amount of damages, as well as for damages arising out of special circumstances, and may not claim the amount exceeding the estimated amount of damages unless otherwise stipulated (see, e.g., Supreme Court Decision 86Meu2375, 2376, Sept. 27, 198). However, the Plaintiff’s claim for this part of the Plaintiff’s claim is without merit, as seen earlier, that the Defendant agreed to compensate for the amount of damages if the Defendant delayed the obligation to repay the borrowed amount at the time of the instant loan.

3. Conclusion

Therefore, the plaintiff's claim (including the part extended in the trial) is justified within the above scope of recognition, and the remaining claims are dismissed as it is without merit. Since the judgment of the court of first instance is unfair with different conclusions, part of the plaintiff's appeal and extended claims are accepted and the judgment of the court of first instance is modified as above, it is so decided as per Disposition.

Judges Lee Jae-eng

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