2015 Doz. 206672 Undue profit

A Stock Company

Seoul

Representative Director 000

Law Firm 00

Attorney Lee In-bok

B

00 City/Do

December 7, 2016

December 21, 2016

1. The defendant shall pay to the plaintiff 230,000,000 won with 15% interest per annum from June 9, 2016 to the day of complete payment.

2. The costs of the lawsuit are assessed against the defendant.

3. Paragraph 1 above may be provisionally executed.

The same shall apply to the order.

1. Basic facts

A. The Plaintiff is a construction company established by D. Since July 1994, the Defendant served as the head of the Plaintiff’s construction division from August 2002 to 00: (a) has been promoted from January 2005 to the head of the headquarters; and (b) has been in charge of performing construction works by concluding a prime contract and a subcontract after setting the construction cost and selecting a subcontractor in relation to various construction works performed by the Plaintiff.

B. On June 4, 2008, the Defendant was indicted for committing an offense of occupational breach of trust, etc., under which, in collusion with a subcontractor regarding a contract for metal 00 subcontracting among new construction works of 000 schools executed by the Plaintiff, the Defendant was charged with an offense of occupational breach of trust, etc. with the effect that, in collusion with the subcontractor regarding a contract for metal 00 subcontracting works, the construction cost was overestimated, and that the subcontractor received rebates in the aggregate amounting to 480 million won from the subcontractor

C. On June 28, 2008, the Defendant’s punishment E entered into an agreement with the Plaintiff to set the amount of the criminal agreement with the Defendant as 400 million for the Defendant’s prior wife at the first instance court of the relevant criminal procedure (hereinafter “instant agreement”).

D. On July 22, 2008, the defendant was convicted of one year and six months of imprisonment by the court of first instance at the court of first instance related to the criminal procedure, and appealed against the above judgment. At the appellate court related to the criminal procedure, 170 million won out of the contract amount of this case was repaid, and the defendant was sentenced to a suspended sentence of three years and six months from the above appellate court on October 9, 2008, and the above judgment was sentenced to a suspended sentence of three years and six months from the above appellate court on October 9, 2008. The above judgment became final and conclusive [the grounds for recognition], without dispute, each entry of Gap 1 through 8 (including the number where there is a serial number), and the purport of the whole pleadings

2. The parties' assertion

A. The plaintiff's assertion

The Defendant, as his agent, concluded the instant agreement with the Plaintiff by designating the Defendant E, and thereafter, the Plaintiff received only KRW 170 million from the Defendant’s side as the repayment of the instant agreed amount. Therefore, the Defendant is liable to pay the Plaintiff the remainder of the instant agreement amounting to KRW 230 million and delay damages.

B. Defendant’s assertion

1) Unauthorized Representation Claim

The Defendant did not have any delegation related to the instant agreement to E under detention at the time, and only became aware of the instant agreement after the appellate trial related to the pertinent criminal procedure and after being released. Therefore, the Defendant did not have a duty to pay the instant agreement to the Plaintiff.

2) The assertion of false conspiracy

Unlike the facts charged in the relevant criminal procedure, the Defendant did not actually inflict any loss on the Plaintiff, and the Plaintiff was aware of such fact, so that the Defendant had a defense counsel appointed and submitted a written application to the court in the relevant criminal procedure, as well as paid wages and leave expenses even during the period of detention. The instant agreement is deemed to have waived the retirement allowance, and also set up a provisional attachment on an officetel owned by the Defendant, but the Plaintiff did not at all set up a provisional attachment, and paid the retirement allowance to the Defendant. Accordingly, the Defendant did not have a duty to pay the instant agreed amount to the Plaintiff.

2. Determination

A. Whether this case’s unauthorized representation is the case’s agreement

In light of the following circumstances, which can be known by the overall purport of the evidence and pleadings as mentioned above, i.e., ① the agreement of this case was prepared for the Defendant’s wife in the related criminal proceedings, ② the documents prepared in accordance with the agreement of this case and the details of repayment in the first instance court and the appellate court in the related criminal proceedings are deemed to have been submitted. Considering that the agreement of this case was a prison relationship between E and the Defendant, at least the Defendant appears to have been sufficiently known that the agreement of this case was concluded in connection with his own criminal proceedings, ③ the part of the contract of this case was repaid in the name of the Defendant’s wife in the related criminal proceedings, ③ there was no circumstance in which the Defendant raised any objection after the payment, ④ the agreement of this case was concluded with the Defendant’s agent, and ④ the Plaintiff expressed his intent to waive retirement allowances in terms of the damage change in the relevant criminal proceedings, it is reasonable to view that the agreement of this case was concluded with the power of attorney of the Defendant, or concluded with the Defendant implied consent

B. Whether the agreement of this case was concluded by false conspiracy mark

In order to establish false declaration of intention, there is a difference between the truth and indication of declaration of intention and an agreement with the other party as to the discrepancy (see Supreme Court Decision 98Da17909 delivered on September 4, 1998).

In full view of the following circumstances, which can be known through the aforementioned evidence and the purport of the entire pleadings, i.e., (i) the Defendant directly received an amount exceeding 400 million won from a subcontractor in the relevant criminal procedure and raised it as non-financial resources, and (ii) the Defendant actually paid KRW 170 million out of the agreed amount in the relevant criminal procedure with the Defendant’s name, etc. in the appellate trial, it is insufficient to acknowledge that the agreement of this case was concluded through a false declaration of conspiracy solely on the grounds that the agreement of this case was concluded by the Plaintiff’s submission of a written application or the Defendant’s appointment of counsel in the relevant criminal procedure, etc., and there is no other evidence to acknowledge this.

C. Sub-decision

Therefore, the Defendant is obligated to pay to the Plaintiff the remainder of KRW 170 million up to KRW 230 million, limited to the Plaintiff’s 400 million, and damages for delay calculated at the rate of 15% per annum from June 9, 2016 to the day of full payment, which is obviously the day following the delivery of the copy of the claim and the application form for modification of the purport of the instant case sought by the Plaintiff.

4. If so, the plaintiff's claim is justified and it is so decided as per Disposition.

Judges of the presiding judge;

Judges Dok-Ba

Judge Park Jae-young