Law Firm Min-young, Counsel for the plaintiff-appellant

[Defendant-Appellee]

Attorney Kim Jung-chul, Counsel for the defendant-appellant

Attorney Kim Jong-jin

2. The defendant shall pay to the plaintiff 29,00,000 won with 5% interest per annum from December 20, 2018 to April 18, 2019, and 12% interest per annum from the next day to the day of full payment.

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

4. Paragraph 2 can be provisionally executed.

A. The plaintiff and the defendant are relatives.

B. The Defendant agreed to deliver 5% of the amount invested by the Plaintiff as monthly income (hereinafter “instant investment agreement”) by recommending the Plaintiff to purchase virtual currency Bitcoin in Japan and make an investment in the Republic of Korea to sell them and make profits therefrom, and accordingly, transferred KRW 30,000,000 to the Defendant on March 9, 2018.

C. Meanwhile, the Defendant received the above KRW 30,000,000 from the Plaintiff, and on the same day, remitted KRW 12,000,000 to the Defendant’s mother-friendly account; KRW 6,000,000 to another account under the name of the Defendant; KRW 6,000,000 was deposited in cash; and the remainder KRW 6,00,000 was deposited in cash on March 10, 2018.

D. The content of the part relating to the instant case among the content of the Kakao Stockholm messages and telephone dialogue sent and received after the instant investment arrangement between the Plaintiff and the Defendant is as follows.

<2018. 3. 23.>피고: 돈 잘 있습니다. 오늘 수익은 백원고: 많이 올랐던데 차액이 별로 없나보네<2018. 4. 7.>피고: 그리고 이번달은 5프로 힘들 거 같어. 나 월요일까지만 하고 일본은 빠지기로 했고이제 튀니지 여권승인 날 때까지 수익이 별로 없거든. 더 빠지고 싶으면 원금 다 돌려줄게<2018. 4. 13.>피고: 일본 몇일동안 계속 역프다.원고: 일본이 D야?피고: 니돈 왔다 갔다 하는 건대 관심 좀 가져라, 지금 수익난 게 하나도 없어. 이번 경비나가고 역프여서 일본에 돈 묶여 있어원고: 관심 갖기 싫으니까 맡긴거지<2018. 5. 21.->피고: 일단 투자 받아서 일본 재정이랑 금괴 하려고 알아보고 있고, 투자만 받으면 바로 시작할 수 있는데 투자금 받는게 쉽지가 않네, 시작만 하게 되면 니 돈은 한달 단위로 벌어들이는 수입의 내 지출금 빼고 나머지는 천부 주려고 계획은 하고 있어<2018. 11. 18.>피고: 내가 물론 뭐. 투자를 니가 한다고 해서 얘기를 내가 브리핑을 하고 일본 왔다 갔다했을 때 어? 첫달 내가 돈 이자 나온거에서 돈 주고 그 다음 이제 일본 쪽이 힘드니까 힘드니까 내가 이런 쪽으로 지금 루트를 알고 있는데 너 어떻게 해볼래? 라고 얘기를 했잖아. 그렇지? 너는 일단, 너도 조심을 해라. 나는 그냥 일본 쪽을 계속 돌리고 싶다. 일본돌렸어. 돌렸는데 수익이 안나와. 그래서 내가 그거에 대해서 너한테 얘기를 했어. 이거 계속 금액 적은 돈 갖고 일본 왔다 갔다 하는 그 경비도 안나오고 돈을 뺄래? 라고 너한테물어봤어. 빼고 싶으면 빼라 그 일단 일본 쪽은 계속 돌리고 싶다 해가지고 내가 그냥 뒀던거지. 그렇지?원고: 몰라 니가 빼라고 한 적은 없는 것 같아. 뺄래? 라고 한 적은 없고피고: 난 분명히 너한테 그때, 그때 돈 투자 들어왔던 돈들 다 친구들한테 얘기해 가지고 지금 일본 상황이 이러이러하니 빼고 싶으면 삐라 라고 너한테 분명히 얘기를 했어.원고: 모르겠어. 나는 기억에 없고, 어쨌든 내가 그 튀지니인가 뭔가 하지 말라고 했는데니가 넣어서 날아간거 아니야 돈은피고; 하지 말라고 안하고 너는 좀 지켜보자라고 그랬어

[Ground of recognition] Gap evidence Nos. 1, 3, 4, 5, 6, Eul evidence Nos. 2, and the purport of the whole pleadings

2. Summary of the parties' arguments

A. The plaintiff

Since the defendant agreed to guarantee the principal of the investment and to return it, it shall seek the return of the investment principal.

Even if the above investment principal return agreement is not acknowledged, the defendant did not make an investment as stipulated in the investment agreement of this case, but received the investment money from the plaintiff, and then transferred it to a passbook in the name of the plaintiff and his own other passbook and used it arbitrarily. Accordingly, the defendant violated the investment agreement. As the defendant's argument, even if the defendant used the plaintiff's investment money to purchase bitco, it was incurred total loss by investing in bitco, not a Japanese bitco investment, which is not a Japanese bitco investment, as stipulated in the investment agreement of this case without the plaintiff's consent. The plaintiff cancelled the agreement on the ground of the above violation of the investment agreement, and sought the return of the investment

B. Defendant

The Plaintiff and the Defendant did not have a conclusive agreement on the limitation on the place of investment (the instant Bitcoin investment). The Plaintiff did not clearly oppose the investment that is protruding, and the Defendant purchased bitcos from the Plaintiff and sent the total amount of KRW 30,000,000 from the investment to E on April 13, 2018 and April 17, 2018, and then remitted the said F site to F which is a site of Bitcoin, but eventually, the Defendant did not violate the obligation under the instant investment agreement. Accordingly, the Defendant is not liable for any damages to the Defendant.

3. Determination

(a) Claims under the agreement on return of the invested principal;

The evidence presented by the Plaintiff alone is insufficient to recognize that the Defendant entered into a conclusive agreement to guarantee the principal of investment and return the said principal to the Plaintiff, and there is no other evidence to prove otherwise. Therefore, the Plaintiff’s claim under the aforementioned principal guarantee agreement is without merit.

(b) Claim against breach of an investment contract;

According to the above facts, the plaintiff and the defendant paid the investment amount to the defendant through the investment agreement of this case, and the defendant purchased the bitcoin in Japan by using it and decided to make an investment in the sale method in Korea, so that they agreed on the method of use of the investment amount specifically and definitely.

However, according to the above-mentioned facts and the above-mentioned evidence, the following facts can be found to exist, namely, ① 30,000,000 won, which is the amount invested by the Plaintiff, for purchasing Bitcoin in Japan (the Defendant did not disclose the withdrawal of the investment money in this case transferred to one’s name and one’s passbook) and ② According to the Financial Transaction Information Council of G Co., Ltd., there are a large number of details deposited from H, the site of trading virtual currency in the Defendant’s account in the Defendant’s name, and the H trading details in the Defendant’s name (i.e., purchase and sale by using the instant investment money) can be seen to exist. The Defendant did not submit any data. ③ Even if it was alleged by the Defendant, the Defendant used 30,000,000 won in purchasing Bitcoin in Japan as the Plaintiff’s investment money, and even if it was difficult to find that the Defendant violated the Plaintiff’s duty to purchase Bitcoin in accordance with the Plaintiff’s investment agreement.

Therefore, the Plaintiff may rescind the instant investment agreement due to the Defendant’s breach of duty. Since it is apparent in the record that a preparatory document dated October 14, 2019 containing the Plaintiff’s expression of intent to rescind was served on the Defendant on October 15, 2019, the instant investment agreement was lawfully rescinded.

C. Sub-committee

Therefore, the defendant is obligated to pay to the plaintiff 29,00,000 won remaining after deducting the amount of KRW 1,00,000,000, which is 30,000,000, which is the amount received by the plaintiff under the investment agreement of this case, and to pay to the plaintiff 29,00,000 as well as the amount calculated at the rate of 5% per annum as stipulated in the Civil Act from December 20, 2018 to April 18, 2019, which is the delivery date of the copy of the complaint of this case, and from the next day to the day of complete payment, 12% per annum as stipulated in the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings.

4. Conclusion

The plaintiff's claim shall be accepted on the ground of its reasoning. Since the judgment of the court of first instance is unfair with different conclusions, the judgment of the court of first instance shall be revoked, and it is so decided as per Disposition by ordering the defendant to pay the above amount.

Judges Noh Jeong-hee

Judges Kim Yong-nam