2. The Plaintiff’s appeal against the Defendants is dismissed in entirety.

3. All costs of the lawsuit shall be borne by the Plaintiff.

The Defendants jointly and severally pay to the Plaintiff the amount of KRW 116,915,722 and the amount at the rate of 5% per annum from the day following the delivery of a copy of the complaint of this case to the day of rendering the judgment of the first instance, and 20% per annum from the next day to the day of full payment.

2. Purport of appeal

Of the judgment of the court of first instance, the part against the plaintiff shall be revoked. The defendants jointly and severally pay to the plaintiff an amount of 55,990,722 won per annum from the day following the delivery of a copy of the complaint of this case to the day of the judgment of the court of first instance, and an amount of 20% per annum from the next day to the day of complete payment.

Defendants: as stated in paragraph (1) of this Article.

(a) Relationship between the Parties

From September 197, the Plaintiff and Defendant 1 had been jointly operating (company name omitted) companies engaged in the business of manufacturing and selling iron (hereinafter “company”) from around September 1997, and maintained a partnership. The Plaintiff mainly took charge of the business of producing and supplying iron, Defendant 1 was in charge of the business and fund management, and Defendant 2 (the process of opening name omitted) was in charge of the company’s accounting.

(b) the occurrence of disputes;

Defendant 2 retired from the company on or around September 2002, and Nonparty 1, the Plaintiff’s wife, was employed as a subsequent post. Nonparty 1, while examining the existing account books, etc. after having been in charge of the new accounting affairs, knew that the Defendant was 3,000,000 won of the bill issued by the company, and requested the Defendant 1 to provide explanatory order on or around December 2002, recognized the fact that the said Defendant was arbitrarily used, and agreed that the Plaintiff would bring about KRW 7,00,000 out of the company’s company’s property. The Plaintiff received the said amount by borrowing KRW 7,000,000 from Defendant 1 as security a loan (hereinafter “instant loan obligation”).

Even after the agreement as above, the Plaintiff thought that there was additional embezzlement by Defendant 1, which led to deepening mutual confidence. Ultimately, on October 29, 2003, the Plaintiff filed a criminal complaint on the charge that the Defendants embezzled KRW 321,327,943 in total company property, and embezzled KRW 47,306,683 in addition to the sum on December 3, 2003, and filed an additional complaint by the Defendants. On February 18, 2004, the Plaintiff filed a criminal complaint again with the suspicion that Defendant 1 arbitrarily obtained a loan of KRW 9,100,000 in the name of the Plaintiff.

(c) settlement of the relationship of the same industry;

On February 9, 2004, Defendant 1 filed a lawsuit against the Plaintiff for partition of co-owned property as to the instant real estate and sought liquidation of the business relationship. Defendant 1, in the course of the said lawsuit, asserted that the instant real estate, trade name rights, deposits, custody, bills, receivables, accounts receivable, machinery and equipment and materials, debts including the instant loans, damages claims against the Plaintiff (such as the Plaintiff’s exemption of debts to the company of the customer at will), and the Plaintiff also asserted that the Defendants embezzled the company’s property on July 28, 2004, while Defendant 1 asserted that “the Plaintiff paid KRW 260,000,000 to Defendant 1,” Defendant 1 was liable for the registration of co-owned property from the Plaintiff and Defendant 1’s joint ownership transfer to the Plaintiff on July 14, 2004, with respect to the Plaintiff’s share in the instant real estate as joint ownership.”

(d) Results of criminal complaint;

As a result of the investigation, Defendant 1 was prosecuted on November 18, 2004 as to embezzlement of KRW 9,159,542, an aggregate of KRW 1,889,88, and KRW 7,69,654, as stated in [Attachment 4] No. 4 annually, and KRW 1,889,88, and KRW 7,654, as stated in [Attachment 7] 7]. Defendant 2 was subject to a disposition of suspicion as to all of the facts of accusation. Defendant 1 was sentenced to a five-month punishment in the case of occupational embezzlement by Daejeon District Court Decision 2004Da3112, March 16, 2005; Daejeon District Court Decision 2005No593, May 20, 2005; Defendant 1 was sentenced to a suspended sentence of imprisonment with prison labor for 200,000 won; and Defendant 2 was subject to a final and conclusive judgment on May 16, 2005.

[Ground of recognition] Evidence No. 7-1 to evidence No. 9, evidence No. 11-2, evidence No. 14-2, 3, 8, 10 through 13, 22, 38, 50, 56, evidence No. 15-15, evidence No. 15, 20, Eul evidence No. 23, evidence No. 29-1 to 11, part of the testimony and the purport of the whole pleadings by Non-Party No. 1 of the first instance trial

2. The plaintiff's assertion

The Defendants, who were in exclusive charge of corporate fund management due to negligence in the production and supply of the Plaintiff, conspired to embezzled corporate fund and enter funds in the account book as if the funds were deposited, and embezzled KRW 116,915,722 as shown in the attached list by withdrawing the company fund from the corporate account book and omitting entry in the account book. The Defendants, as joint tortfeasor, are jointly and severally liable to pay the Plaintiff the amount of damages equivalent to the embezzlement amount.

3. Determination

A. As to Defendant 1

A mediation has the same effect as a judicial compromise, which has the same effect as a final and conclusive judgment, and thus has the same effect as a final and conclusive judgment, so when a mediation is concluded between the parties, the relationship of rights and obligations based on the legal relationship in the previous dispute shall be extinguished, and a new relationship of rights

Before the filing of the lawsuit for partition of co-owned property, the Plaintiff filed a criminal complaint with Defendant 1, and accordingly, the lawsuit was brought to determine that Defendant 1 cannot maintain a partnership with the Plaintiff, and the conciliation was conducted as above on July 28, 2004 when the investigation was underway. In the above lawsuit, both parties asserted as to the company’s property and in the process, each party’s claim for damages against the other party along with the loan obligation of this case was also subject to dispute. Accordingly, it is reasonable to view that in the above conciliation, the damages claim arising from Defendant 1’s embezzlement was the subject of dispute, which is the subject of settlement. The claim for damages of this case was established by the conciliation and the settlement was already extinguished.

B. As to Defendant 2

Defendant 2’s embezzlement of KRW 116,915,72 in collusion with Defendant 1 as alleged by the Plaintiff. As such, it is difficult to believe that Nonparty 1 conspired with Defendant 1 to embezzlement of KRW 116,915,72. The amount of KRW 14-1, Party A’s evidence No. 21, 22, 35, 36, 53, 54, Party A’s evidence No. 15-7, 8, 15, and Party A’s evidence No. 16, and Nonparty 1’s evidence No. 4-2, Defendant No. 3’s evidence No. 1 to No. 4-1, and evidence No. 5-2, Defendant 2-1, and Defendant No. 2-3’s evidence No. 1 to No. 4-2, and Defendant No. 5’s account No. 7-2, and it is difficult to acknowledge that the amount of KRW A’s evidence No. 1 to No. 3-5-1, and No. 20-1-2.

However, we examine whether the above defendant's embezzlement is limited to the amount in attached Form 3 and the amount in attached Form 7, which is the amount deposited by defendant 2 in the company passbook.

(1) As to Nos. 3 No. 900,000 per annum, No. 3 6,700,000 per annum

Comprehensively taking account of the overall purport of arguments in the statement No. 4-1, No. 3, No. 3-2, 6, and 7 of the evidence No. 4-2, No. 3-2, 3-2, 6, and 7, each of the above amounts is confirmed that KRW 900,000 deposited in the company passbook on Nov. 5, 1998 was cancelled due to mistake on Nov. 13, 1998 and deposited in Defendant 2’s passbook. On Dec. 12, 2001, KRW 6,700,000 deposited in the company passbook on Dec. 20, 200 and deposited in Defendant 2’s passbook. Each of the above amounts is the amount to be deposited by Defendant 2’s original passbook, and it is confirmed that it was deposited by mistake in the company passbook as the number of staff members of the O-dong Credit Union operated by the company, and even thereafter, the above amount of each of the above amounts has been embezzled.

(2) As to No. 3 No. 2,000,000 per annum

According to the statement No. 4-2 of the company evidence No. 4-2, the fact that the amount of KRW 2,00,000 was deposited by Defendant 2 in the company passbook on September 13, 2001 can be acknowledged. However, in full view of the whole purport of the argument in each statement No. 3-4, No. 5-2 of the evidence No. 3-2, it can be acknowledged that Defendant 2 has been performing transactions, such as repayment of company money or repayment of the company money after borrowing the company money several times while working for the company. Thus, it is insufficient to recognize that Defendant 2 embezzled the above amount solely on the above deposit account, and there is no other evidence to acknowledge this.

(3) As to Nos. 3 and 4 gold 3,000,000 per annum

In full view of the purport of the argument in the statement No. 14-7, No. 18, No. 2-7, and No. 3-8 of the evidence No. 14-7, and No. 2-7, and No. 3-8 of the evidence No. 3, on February 1, 2002, Defendant 2 deposited KRW 3,00,000 into Defendant 2’s account on February 1, 2002. The above amount was paid by Defendant 2 after receiving the bill discounted to Nonparty 2 as the company’s passbook, and again deposited it into Defendant 2’s passbook. Defendant 2 had discounted the bill at KRW 13,240,000 against Nonparty 2 even on December 5, 2001. The above amount can not be deemed to have been embezzled by Defendant 2.

(4) As to the amount of KRW 2,775,686 in [Attachment 7] No. 3,400 per annum

Comprehensively taking account of the purport of the entire arguments in the statement No. 4-8 and No. 9, Defendant 1 paid a promissory note of KRW 1,775,686 on May 9, 2001 without the Plaintiff, and a provisional coefficient of KRW 1,00,000 on April 15, 2002 to Defendant 2 as an encouragement expense. Although Defendant 1 paid each of the above amounts without the Plaintiff and was subject to criminal punishment as seen above, Defendant 2 cannot be deemed to have embezzled each of the above amounts.

4. Conclusion

The Plaintiff’s claim against the Defendants should be dismissed on the ground that all of its grounds exist. Since the part against the Defendants in the judgment of the court of first instance differs from this conclusion, it is revoked by accepting the Defendants’ appeal and the Plaintiff’s claim corresponding thereto is dismissed in entirety. The Plaintiff’s appeal against the Defendants is dismissed in entirety.

Judges Kim Jong-dae (Presiding Judge)