Seongbuk General Construction Co., Ltd. (Law Firm Chungcheong, Attorneys Lee Jong-young et al., Counsel for the plaintiff-appellant)

New Institute of Education, etc. and two others (Law Firm Woo, Attorneys Park Jong-woo et al., Counsel for the plaintiff-appellant)

June 28, 2013

1. The Plaintiff shall jointly and severally pay 514,786,456 won to the Plaintiff, Defendant 3 shall jointly and severally pay 63,046,348 won to the Plaintiff, Defendant 3 shall jointly and severally pay 20% interest per annum from November 21, 2012 to the day of full payment.

2. The plaintiff's remaining claims against the defendants are all dismissed.

3. The costs of lawsuit shall be borne by the Defendants.

4. Paragraph 1 can be provisionally executed.

The Plaintiff jointly and severally pays to the Plaintiff the amount calculated at the rate of 20% per annum from the day following the delivery of the copy of the application for modification of the claim of this case to the day of complete payment. The Defendant Foundation, Defendant 3, Defendant 3, and Defendant 3, Defendant 3, Defendant 63,074,842, and each of them are paid with interest of 514,867,552 won.

1. Facts of recognition;

(a) Relationship between the Parties

(1) The Plaintiff is a company whose purpose is civil engineering and construction work business.

D. The purpose of the Defendant’s New Promotion Institute (hereinafter referred to as the “New Promotion Institute”) is to provide high-level general education (the name before the change: the title before the change; the “New Promotion and Welfare Foundation”). The Defendant’s New Promotion and Welfare Foundation (the name before the change; the “New Promotion and Welfare Foundation”) is a social welfare foundation for the purpose of the elderly’s specialized medical care facilities, etc., and Defendant 3 was the president of the Defendant New Promotion and Welfare Foundation, the president of the Defendant New Promotion and Welfare Institute.

B. Conclusion of each contract for construction works;

(1) On October 10, 2002, the Plaintiff entered into a contract (hereinafter referred to as “the first contract”) with the Defendant New Reconstruction Institute (the contractor stated as “Non-party 3,” but the contractor is not in dispute between the parties) to the contract, and concluded the said contract (including the additional tax, and the subsequent increase in the construction cost) with the amount of construction cost of KRW 10,802,000,000 (the amount of construction cost) of the new construction project under the said contract with the contractor (the contractor’s name was stated as “Non-party 1, 273,300,000,000, out of the construction cost under the said contract).

on September 22, 2000, the Plaintiff entered into a contract with the Defendant New Culture and Development Institute for the construction of the Korea-Japan University on six parcels of land, including the 4,132,755,000 won (including the additional tax) and completed the said construction work. However, the Defendant New Culture and Development Institute failed to pay the Plaintiff KRW 1,770,000, out of the construction cost under the said contract.

On December 10, 2002, the Plaintiff entered into a contract for the construction of a new medical care facility for senior citizens (including additional tax, and the construction cost was finally changed to KRW 2 billion) with the Defendant New Heungcheon-si ( Address 3 omitted) on December 10, 2002, and completed the said construction work (hereinafter “third contract”). However, the Defendant New Heungcheon-si Foundation failed to pay the Plaintiff KRW 300,786,00, out of the construction cost under the said contract.

(c) Conclusion of each loan for consumption;

(1) On September 30, 2005, the Plaintiff entered the loan agreement as “non-party 3,” as well as the subcontractor under the first contract agreement, which forms the basis of the loan agreement. Accordingly, there is no dispute between the parties that the subcontractor “non-party 3,” and considering the entire purport of pleadings in the testimony of Non-party 1 and Non-party 1, the above loan agreement was made and concluded by the Defendant New Interest Institute. Furthermore, if the Plaintiff is a reasonable person based on the specific circumstances before and after the conclusion of the contract, such as the nature, content, purpose, and conclusion of the loan agreement, it appears that the Defendant New Interest Institute will understand the parties to the contract, and thus, the Defendant New Interest Institute will be deemed the parties to the loan agreement (see Supreme Court Decision 2010Da83199, 8305, Feb. 10, 201; 201Da31205, Feb. 10, 2011).

2. Loan interest rate of KRW 1,273,30,00 in Table 1. Loan: 8% per annum: from September 30, 2005 to September 5, 2006: overdue interest rate of KRW 1,273,30,000: The overdue interest rate of KRW 8% per annum: from September 30, 2005 to September 29, 2006; the overdue interest rate of KRW 20 shall be added to the rental interest rate of paragraph 2. The overdue interest rate of KRW 8% per annum 14% per annum, and the highest interest rate of KRW 2% per annum) is not more than 3 months: 8%p, 9%p, and 10%p: more than 6 months

on September 30, 2005, the Plaintiff entered into a monetary loan agreement with the Defendant New Reconstruction Institute for Loaning the unpaid construction cost pursuant to the second contract (hereinafter “the second loan agreement”) with the said Institute for Loaning the loan, and Defendant 3 guaranteed the said obligation with the said Institute for Loaning the principal contents as follows.

2. Loan interest rate of KRW 1,770,000 per annum: 8% per annum: from September 30, 2005 to September 5, 2006, the overdue interest rate of KRW 1:00 per annum; the overdue interest rate of KRW 8% per annum; the overdue interest rate of KRW 1,770,000 after the repayment date shall be added to the overdue interest rate of KRW 2. The overdue interest rate of KRW 8% per annum 14% per annum, the highest interest rate of KRW 2% per annum, and the highest interest rate of KRW 3 months per annum: not more than 8%p, 9%p, and more than 6 months: 10%p.

On December 31, 2005, the Plaintiff entered into a monetary loan agreement with the Defendant New Reconstruction and Welfare Foundation to borrow the unpaid construction cost pursuant to Article 3 (hereinafter “third loan agreement”) and Defendant 3 stand joint and several surety of the said obligation by Defendant New Reconstruction and Welfare Foundation. The main contents of the agreement are as follows:

The overdue interest rate of December 31, 2005 to September 29, 2006: the overdue interest rate of December 31, 2005, which is included in the main sentence: 300,786,000 won: 83% per annum: the overdue interest rate of September 29, 2006, which is the overdue interest rate of September 29, 2006, shall be added to the additional interest rate of paragraph (2). The overdue interest rate of paragraph (2) shall be not more than 3 months: the minimum interest rate of paragraph (2) + the additional interest rate of not more than 8% per annum, not more than 6 months: 9%p, not more than 6 months: 10%p;

D. Principal repayment of the defendants

(1) On April 18, 2008, 200 million won, 150 million won on December 30, 2008, 200 million won on December 31, 2009, 200 million won on March 30, 2010, and 1.273 billion won on March 30, 2010 (50 million won + 150 million won + 220 million won + 423 billion won) respectively, Defendant New Bank paid to the Plaintiff each of the principal under the loan for consumption agreement (1273 billion won) with the intention to preferentially pay the principal under the loan for consumption in preference to the principal under the loan for consumption agreement.

B. The Plaintiff paid to the Plaintiff the principal of the loan for consumption (1.7 billion won) under the above loan agreement, with the intention to preferentially pay the principal amount under the loan for consumption plus KRW 3770 million,00,000,000,000,000,000 won on March 30, 2010, and KRW 3777,777,000,000 won (5.77 billion + KRW 373,000 + KRW 330,000 + KRW 3323,30,000,000) under the loan for consumption prior to the payment of the principal amount under the loan for consumption agreement.

Article 30,786,00 won (+130,000 + 170,786,000 won + 170,786,000 won) shall be paid respectively to the Plaintiff on May 12, 2010 .30,00,000 won, and the principal under the above loan agreement (30,786,000 won) shall be paid in preference to the principal under the loan agreement for consumption.

Applicant Accordingly, the amount calculated by the rate of 8% per annum (within the overdue interest rate of the agreement and the rate the plaintiff seeks) of interest and delay damages under the loan contract for consumption 1, 2, and 3 shall be as listed in the following table:

6. Loan agreement of 1 August 18, 2008 】 306.3 billion won 】 306.6 billion won 】 306.6 billion won 】 307.6 billion won 】 306.6 billion won 】 306.6 billion won 】 306.6 billion won 】 306.6 billion won 】 305 billion won (77.65 billion won x 365 million won); 306.63 billion won x 306.65 billion won x 36.65 billion won (77.0 million won)

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 6, 8, 26, 27 (including branch numbers, hereinafter the same shall apply), Eul evidence Nos. 8 and 9, part of non-party 1's testimony, and the purport of the whole pleadings

2. Determination as to the cause of action

A. The parties' assertion

(1) The plaintiff's assertion

The Plaintiff, jointly and severally against Defendant New Reconstruction Institute and Defendant 3, sought payment of the total amount of KRW 514,867,552 ( KRW 152,407,369 under a loan for consumption plus KRW 362,460,183 under a loan for consumption under a loan for consumption agreement £« KRW 362,460,183 under a loan for consumption) and the delay damages therefor, and jointly and severally seek payment of the delay damages due under a loan for consumption under a loan for consumption agreement for consumption for the Defendant New Reconstruction Welfare Foundation and Defendant 3, as well as the delay damages due.

Shes argument of the Defendants

The Defendant New Reconstruction Institute and the New Reconstruction Welfare Foundation concluded a contract for each construction work with the Plaintiff (the combination of all contracts Nos. 1, 2, and 3; hereinafter the same shall apply) and did not enter into a monetary loan contract (the combination of all contracts for loans for consumption Nos. 1, 2, and 3; hereinafter the same shall apply). In addition, the Defendant New Reconstruction Institute and the New Reconstruction Welfare Foundation paid the Plaintiff both the construction cost incurred under each construction contract, and even if the payable remains, even if the payable remains, it is obvious that the said claim was filed for the instant lawsuit more than three years after the completion of the construction.

B. Determination

(1) As long as a disposition document is deemed to be authentic, the court shall recognize the existence and content of the declaration of intent in accordance with the language and text stated in the disposition document, unless there is any clear and acceptable counter-proof to deny the content of the statement (see Supreme Court Decision 2012Da39172, Nov. 15, 2012).

B. In light of the foregoing legal principles, insofar as the establishment of each monetary loan for consumption is recognized to be authentic, Defendant New Reconstruction Institute, and the New Reconstruction Welfare Foundation agreed to provide for the purpose of a loan for consumption the construction cost that shall be paid according to each construction contract, and Defendant 3 jointly and severally guaranteed the said Defendants’ obligations. Therefore, barring any special circumstance, Defendant New Reconstruction Institute, Defendant 3, and Defendant 3 are jointly and severally liable to repay to the Plaintiff the obligations under the loan for consumption contract No. 1 and 2, Defendant New Reconstruction Welfare Foundation, and Defendant 3, under the loan for consumption contract No. 3.

According to the above facts, interest and delay damages under a loan for consumption under Articles 1 and 2 are 1,014,465,596 won in total (361,470,376 won + 652,95,220 won in total) and interest and delay damages under a loan for consumption under Article 3 are 106,367,208 won in total. Meanwhile, the Plaintiff shall include part of the interest and delay damages under a loan for consumption under a loan for consumption under a loan for consumption with a school foundation which has a special relationship with the Defendant New Reconstruction Institute and the Korea Welfare Foundation (hereinafter referred to as the “Korea Development Institute”). Meanwhile, the Plaintiff shall include part of the interest and delay damages under a loan for consumption under a loan for consumption with the Korea Development Institute and the Korea Development Institute established by the Korea Development Institute and the Korea Development Foundation (hereinafter referred to as the “Korea Development Institute”), and thereafter, shall include the amount of the contract for the above construction from the Korea Development Institute.

Therefore, Defendant New Reconstruction Institute and Defendant 3, a joint and several surety, jointly and severally, have the obligation to pay to the Plaintiff the remainder damages for delay under the loan agreement for consumption 514,786,456 won (1,014,465,596 won - 209,063,007 won - 290,616,133 won) and the remainder damages for delay under the loan agreement for consumption 3 jointly and severally with the Plaintiff as 63,046,348 won (106,367,208 - 43,320,860 won - 43,860 won) and the damages for delay calculated at the rate of 20% per annum as stipulated in the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings from November 21, 2012 to the day of full payment.

• Also, the Plaintiff’s claim against the Defendants is a claim based on a loan agreement for consumption. As seen earlier, the Defendant’s claim on the premise that the Plaintiff’s claim is a contract payment claim is without merit, without further examination.

3. Judgment on the defendants' assertion

A. The defendants' assertion

(1) Even if Defendant New Interest Institute and New Interest Welfare Foundation concluded a monetary loan contract with the Plaintiff, it was concluded in the form of a transaction for the account of the Plaintiff. This is null and void as it was made by means of a false declaration of intent conspired with the Plaintiff.

She also applied a three-year short-term extinctive prescription to interest claims sought by the Plaintiff. Since it is apparent that the Plaintiff’s claim of this case was filed three years after the date when the interest agreement was concluded, the said claim was extinguished by the statute of limitations.

B. Determination

(1) Determination as to the assertion of false declaration of intent conspired

As to whether each of the monetary loan agreements between the Defendant New Reconstruction Institute, the New Reconstruction Welfare Foundation, and the Plaintiff was made in the form of the Plaintiff’s account, it is difficult to believe that part of Nonparty 1’s testimony was made by the witness, who seems consistent with this, and it is insufficient to recognize only the written evidence Nos. 1 and 2, and there is no other evidence to acknowledge it. Accordingly, the Defendants’ above assertion is without merit.

【Judgment on the Claim for Termination of Prescription】

㈎ 원고의 이 사건 청구채권에 각 금전소비대차계약에 기한 이자채권이 포함된 것인지에 관하여 본다. 앞서 본 바와 같이 지선학원으로부터 지급받은 공사대금 중 각 금전소비대차계약에 대한 변제금액(제1 소비대차계약에 대한 변제금 209,063,007원, 제2 소비대차계약에 대한 변제금 290,616,133원, 제3 소비대차계약에 대한 변제금 43,320,860원)이 각 금전소비대차계약에 기한 이자 또는 지연손해금 합계(제1차 소비대차계약에 따른 이자 및 지연손해금 361,470,376원, 제2차 소비대차계약에 따른 이자 및 지연손해금 652,995,220원, 제3차 소비대차계약에 따른 이자 및 지연손해금 106,367,208원)에 미치지 못하는바, 원·피고들 사이에 변제충당의 합의가 있었다는 점에 관한 주장·입증이 없는 이상 민법 제479조 , 제477조 제3호 에서 정한 순서에 따라 제1 소비대차계약에 따른 이자(1,273,300,000원 × 8% ×1년 ＝ 101,864,000원), 제2 소비대차계약에 따른 이자(1,770,000,000원 × 8% × 1년 ＝ 141,600,000원), 제3 소비대차계약에 따른 이자(300,786,000원 × 8% × 273/365 ＝ 17,997,715원, 원 미만은 버림)에 먼저 충당되어 앞서 인정한 각 금전소비대차계약에 기한 이자는 모두 소멸하고, 일부 지연손해금 부분만 남게 된다.

㈏ 금전채무의 이행지체로 인하여 발생하는 지연손해금은 그 성질이 손해배상금이지 이자가 아니며, 민법 제163조 제1호 가 규정한 ‘1년 이내의 기간으로 정한 채권’도 아니므로 3년간의 단기소멸시효의 대상이 되지 아니한다( 대법원 2010. 9. 9. 선고 2010다24435, 24442, 24459, 24466, 24473, 24480, 24497 판결 참조).

In light of the above legal principles, the Plaintiff’s claim against the Defendants is not subject to the short-term extinctive prescription for three years as damages for delay, and according to the above facts of recognition, the Defendants’ assertion is without merit, since the statute of limitations has been interrupted or waived due to the approval of the obligation under each loan for consumption from March 30, 2010 (the final repayment date under the second loan for consumption is March 30, 2010; the final repayment date under the second loan for consumption is June 17, 2010; the third loan for consumption is the final repayment date under the third loan for consumption; and the third loan for consumption is June 17, 2010).

4. Conclusion

Therefore, the plaintiff's claim of this case is justified within the scope of the above recognition, and the remaining claim is dismissed as it is without merit. It is so decided as per Disposition.

Judges Kim Jong-Un (Presiding Judge)

(1) The Plaintiff asserted that it was paid KRW 370 million on May 13, 2010. However, according to the evidence Nos. 27 and Nos. 8, it appears that the Defendant New Reconstruction Institute paid it to the Plaintiff on May 12, 2010.

(2) The Plaintiff alleged that it received KRW 130 million on May 13, 2010. However, according to the evidence Nos. 27 and Nos. 8, it appears that the Defendant New Reconstruction and Welfare Foundation paid it to the Plaintiff on May 12, 2010.