Gavi Capital Co., Ltd. and one other (Attorneys Park Ma-sung et al., Counsel for the plaintiff-appellant)

Jeonbuk Ginseng (Law Firm LLC, Attorneys Kim Gyeong-he et al., Counsel for the plaintiff-appellant)

October 29, 2015

Seoul Central District Court Decision 2013Gahap21418 Decided May 23, 2014

1. All appeals filed by the plaintiffs are dismissed.

2. The plaintiff 1, 2, and 3's preliminary claims added at the trial of the trial and the plaintiff 1, 2, and 2's preliminary claims are all dismissed.

3. The costs of the lawsuit after the appeal are assessed against the plaintiffs.

1. Purport of claim

A. The Defendant (hereinafter “Plaintiff AFF Capital”) against Plaintiff AFF Capital Co., Ltd.:

1) In the first place, 2,386,428,850 won and 2,386,428,850 won and 8% interest per annum from June 1, 2015 to the service date of the application for modification of the purport of the claim and the cause of the claim as of June 3, 2015 of this case, and 20% interest per annum from the next day to the day of full payment;

2) As to KRW 1,2,3,428,696,603 among them and KRW 1,510,818,612 from June 1, 2015 to the service date of an application for modification of the purport and cause of the claim of this case from June 3, 2015, 5% per annum and 20% per annum from the next day to the date of full payment;

3) Preliminaryly, KRW 1,489,767,671 as well as the amount equivalent to 20% per annum from June 1, 2015 to the service date of an application for modification of the purport of the claim and the cause of the claim as of June 3, 2015 of this case, and KRW 1,489,767,671 as well as the amount equivalent to 30% per annum from the following day to the date of full payment.

(Plaintiff Rovi Capital reduced its primary claim at the trial, added its primary claim Nos. 1, 2, and 3)

B. From June 2, 2015 to June 4, 2015, the Defendant shall pay to Plaintiff KTF Capital Co., Ltd. (hereinafter “Plaintiff KTF Capital”), 3,65,324,004 won in full and in full, 5% per annum from June 2, 2015 to the service date of a duplicate of the application for modification of the purport of the claim and the cause of the claim as of June 4, 2015, and 20% per annum from the next day to the day of complete payment.

(Plaintiff’s Doner Capital reduced its primary claim in the trial and added its primary claim Nos. 1 and 2)

2. Purport of appeal

The judgment of the first instance court shall be revoked. Each of the claims shall seek a judgment identical to the primary claim.

1. Basic facts

The reasoning of this Court concerning this part is as follows, except for the addition of the following to the six pages 6 and 22 of the judgment of the court of first instance, and is as stated in the part concerning “1. Basic Facts” of the judgment of the court of first instance. Thus, it is acceptable in accordance with the main sentence of Article 4

Article 9 (Statement and Guarantee)

① In order to purchase red ginseng products or to purchase secondary ginseng products, the Defendant complied with all business licenses, business reports, and all other authorizations, permissions, and reporting procedures under relevant Acts and subordinate statutes necessary for the purchase of red ginseng products, including facility standards prescribed by Ginseng Industry Act, Food Sanitation Act, and Health Functional Foods Act.

② In order to conclude and implement this contract, the Defendant complied with all necessary procedures (such as resolution of board of directors, etc.) required by the Defendant’s articles of incorporation and other internal regulations for the execution and implementation of this contract. The Defendant’s formation and implementation of this contract is in accordance with the sunyang, the Defendant’s establishment of each objective of the Defendant, and is not in violation of sunyang, the Defendant’s establishment of foundations and other relevant regulations.

(3) Yangyang, where the defendant violates paragraphs (1) and (2) of this Article, he/she shall compensate for all the damages incurred thereby to the floor of the party.

2. Judgment on the plaintiffs' primary claims

A. The plaintiffs' assertion

As a joint and several surety of each of the instant lending contracts, and Yangyang, which is the primary purchaser of red ginseng products pursuant to each of the instant lending contracts, applied for corporate rehabilitation procedures, the Defendant, as the secondary purchaser pursuant to Articles 5(4) and 7(3) of each of the instant sales contracts, has the obligation to purchase all of the red ginseng products from the ridges and the ridges (hereinafter collectively referred to as “three-storys, etc.”) of the Defendant. Therefore, the Defendant, as the purchase price of red ginseng products, shall notify the ridge, etc. pursuant to Articles 5 and 7 of the instant sales contract of the loss of the interest or delay damages at a rate of 8% per annum from the following day: (a) the Defendant, as the secondary purchaser pursuant to Articles 5(4) and 7(3) of the said sales contract, shall pay the interest or delay damages at a rate of

However, from July 7, 2014 to June 1, 2015, the Defendant repaid KRW 3,489,181,388 on several occasions over several occasions, and the Defendant paid KRW 2,386,428,850, as the Defendant’s payment was made in the order of interest or delay on the purchase price of red ginseng products to the third floor, and principal amounted to KRW 2,386,428,850. In addition, the Defendant paid KRW 3,364,204,319 on several occasions from October 8, 2013 to June 1, 2015, the Defendant paid KRW 3,364,204,319 to the third floor. This was appropriated in the order of interest or delay damages on the purchase price of red ginseng products to the third floor of the Defendant’s third floor, and became the principal and KRW 3,65,324,004, remaining.

Ultimately, the Defendant is obliged to pay interest or delay damages from June 1, 2015, which was paid by the 2,386,428,850 won as the purchase price of red ginseng products, and from June 1, 2015, to the 3,665,324,004 won as the ridge, and the last day following the repayment thereof.

The Plaintiffs are creditors who have loaned KRW 5 billion to the ridge, etc. according to each of the instant loan agreements, and the third ridge, etc. are subsidiaries of Gyeyangyang, which applied for corporate rehabilitation procedures, and there is no asset in which each of the above loans is repaid. Therefore, Plaintiff Gavi Capital exercises the claim for loans to the ridge, and Plaintiff Gavi Capital exercises the claim for the purchase price of red ginseng products against the Defendant, such as the ridge, in subrogation of the ridge, etc. in order to preserve each of the loan claims against Plaintiff Gavi Capital, in accordance with each of the loan claims against Plaintiff Gavi Capital. As such, the Defendant is obligated to pay

B. Defendant’s assertion

In each of the instant contracts for the purchase of red ginseng products, the Defendant is obligated to purchase red ginseng products from the floor, etc. on which the Defendant would be able to purchase red ginseng products, and thus ensuring the Defendant’s repayment of each of the loans to the Plaintiffs, such as the floor, etc. on which the purchase price was made. As such, a contract that the Defendant bears the guaranteed liability is in violation of Article 57(2) and Article 112 of the Agricultural Cooperatives Act (hereinafter “Agricultural Cooperatives Act”), which is a mandatory law, and is null and void in that it goes beyond the Defendant’s right ability or capacity to act under Article 111 of the same Act. Accordingly, the Defendant is not obligated to pay the purchase price of red ginseng products to the ridge, etc.

C. Determination

1) As to whether the Defendant’s obligation to purchase red ginseng products is guaranteed liability

In full view of the following circumstances acknowledged in the facts established in the facts and the purport of the entire pleadings, it is reasonable to view that: (a) imposing the Defendant the obligation to purchase red ginseng products in each contract for the purchase of each of the instant products would in fact guarantee the Defendant’s respective obligations for loans against the Plaintiffs, such as the floor under each of the instant loan contracts

A) On February 24, 2012, both the first raw material and product sales contract of this case, first processing consignment and first lending contract of this case were concluded on March 20, 2012. The second raw material and product sales contract of this case, second processing consignment and second lending contract of this case were concluded on March 20, 2012. The above processing consignment contract of this case covers human and red ginseng purchased on the basis of each raw material sales contract of this case. The above processing consignment contract of this case covers three floors. The defendant must deliver red ginseng products made pursuant to each of the above processing consignment contract of this case to Yangyangyang pursuant to each of the above products sales contract of this case. The defendant must obtain prior approval from the plaintiffs who are creditors of each of the above lending contracts of this case in order to deliver red ginseng products to Yangcheonyang. In light of the fact that non-party 1, a joint guarantor of each of the above lending contracts, etc. are parties to each of the above products sales contract of this case, the first processing consignment contract of this case and the first processing consignment contract of this case, and the second processing consignment consignment agreement of this case.

B) Therefore, the terms and conditions of each of the instant contracts should be comprehensively examined, rather than individually examining the contents of each of the instant contracts, and the contents of each of the instant contracts should be examined. On such premise, in order to conduct a business where three floors, etc. used to process and sell red ginseng products made from the Defendant to Yyangyang, it can be known that the Plaintiffs were to receive loans from the Plaintiffs pursuant to each of the instant loan contracts, and the three floors, etc. were to pay loans from the Plaintiffs with the purchase price for red ginseng products received from the Defendant. In other words, in the instant contract for each of the instant products, the first obligation to purchase red ginseng products was imposed on Yyangyang, and furthermore, in preparation for cases where Yyangyang cannot purchase red ginseng products, the purpose of imposing the secondary obligation to purchase red ginseng products is to ensure that the Plaintiffs would be able to receive the principal and interest of each of the instant loans under each of the instant loan contracts, which is a joint and several surety, by guaranteeing the purchase price for red ginseng products purchased from the Defendant.

C) The purpose of this case’s sales contract is to secure the repayment of the above principal and interest of the loan with the purchase price of red ginseng products is to ensure the payment of the purchase price of red ginseng products. As seen earlier, it is also confirmed that the Plaintiffs can manage the payment of the purchase price of red ginseng products by checking the fact that the purchase price of red ginseng products was deposited in each of the above accounts, with the funds deposited in each of the above accounts. In each of the above processing consignment agreement of this case, it is also confirmed that the Plaintiffs can manage the payment of the purchase price of red ginseng products by checking the fact that the purchase price of red ginseng products was deposited in each of the above funds management accounts, and allowing the floors, etc. to confirm the fact that the purchase price of red ginseng products was deposited in each of the above funds management accounts

D) Furthermore, as to the purchase price of red ginseng products as stipulated in each of the contract to sell the products of this case, health expenses, ① although Article 4(1) provides that the purchase price of red ginseng products shall be stated in Article 4(2), the unit price shall be calculated by dividing the total business expenses calculated by adding loans under each of the loan contracts of this case, interest thereon, etc. into the relevant supply quantity. Accordingly, the purchase price of red ginseng products shall be calculated based on the principal and interest of each of the above loan contracts (in the case of purchase of 10% per annum, interest rate per annum). ② Under Article 4(3), if the Defendant is liable to purchase red ginseng products, the purchase price may be adjusted if the Defendant bears the secondary obligation to pay the principal and interest of the loan under each of the above loan contracts of this case. ③ Article 5 also provides that the purchase price of red ginseng products of this case shall be paid to the Defendant to the extent that the principal and interest of each of the loan contract of this case is reasonable and reasonable.

2) As to whether the Defendant’s obligation to bear the guaranteed obligation is null and void

According to Articles 57 and 112 of the Agricultural Cooperatives Act, the defendant, a product partnership, may borrow funds only from the State, public organizations, the National Federation, or the Nonghyup Bank (the provisions prior to the amendment on March 31, 201 can borrow funds only from the State, public organizations, or the National Federation). The above provisions constitute mandatory provisions (see Supreme Court Decisions 86Da133, Jun. 24, 1986; 70Da1450, Aug. 31, 1970; 71Da935, Jul. 29, 197; 71Da935, Jul. 29, 197, etc.). Therefore, the defendant guaranteed the principal and interest of each of the loans of this case against the plaintiff, such as the loan of this case by bearing the obligation to sell red ginseng products in accordance with the contract of each of the products of this case, is null and void Article 517 and Article 512 of the Gangwon National Agricultural Cooperatives Act, which are mandatory provisions.

In addition, the legal capacity of a legal entity is limited by the law that served as the foundation for the establishment of a legal entity and the purpose of its articles of incorporation, and the act within its purpose is not limited to the purpose specified in the law or the articles of incorporation itself, but to carry out the purpose directly and indirectly (see Supreme Court Decision 86Meu1384, Jan. 19, 198). The Agricultural Cooperatives Act, which served as the foundation for the establishment of the defendant, lists the business that the defendant can carry on in Article 111, and in addition to subparagraphs 2 and 9 of the same Article, the defendant can carry on the business of processing and selling human and red ginseng, which is an agricultural product, and any incidental business related thereto. However, as seen above, the burden of invalid guaranteed liability in violation of Articles 57 and 112 of the Agricultural Cooperatives Act, which are mandatory law, is not included in the scope of incidental business permitted under the above provision. Therefore, it is invalid in that the defendant's obligation to actually take the loan of the plaintiff, etc. out of the scope of the principal and interest of the loan of this case.

3) Sub-decisions

Therefore, the Defendant’s obligation to purchase red ginseng products in each contract of the instant product sales constitutes guaranteeing the Defendant’s obligation to pay loans under each of the instant loan contracts, and thus, it is in violation of the mandatory law or null and void beyond the Defendant’s legal capacity. Therefore, the Defendant’s primary claim is without merit, which is premised on the Defendant’s obligation to pay the purchase price to the ridge, etc. according to each of the instant contract of

3. Determination as to the first preliminary claim by the plaintiffs

A. The plaintiffs' assertion

Even if the Defendant’s secondary purchase obligation on the Defendant’s floor, etc. under each of the instant sales contracts violates the Agricultural Cooperatives Act or becomes null and void beyond the Defendant’s legal capacity, the Defendant shall compensate the Defendant for the damages inflicted on the Defendant’s floor, etc. by failing to perform the secondary purchase obligation in accordance with the statement and guarantee provision of Article 9 of the respective sales contract of the instant product and the content of the purchase promise prepared by the Defendant’s president against the Plaintiff ABD Capital.

However, the Defendant’s repayment of KRW 3,489,181,38 over several occasions to the third party’s floor and the Defendant’s repayment of KRW 3,428,69,696,603 to the Defendant’s above compensation liability and the Defendant’s repayment of the Defendant’s loans to the Plaintiff of the third party’s ridge in an in personam joint and several relationship (i.e., principal KRW 1,510,818,612 + interest accrued + interest KRW 2,417,87,91 + interest KRW 2,417,87,91 + interest KRW 500,000 on the first year’s interest payment for the first year). In addition, the Defendant paid KRW 3,364,204,319 over several occasions to the third party’s floor, which led to the Defendant’s repayment of the principal and KRW 3,65,324,004.

Ultimately, the defendant is obligated to pay interest or delay damages from June 1, 2015, which was paid to the plaintiff Gavi Capital who subrogated the third party's floor, and from June 2, 2015, to the plaintiff Gavi Capital who subrogated the third party's floor, interest or delay damages from June 2, 2015 to the plaintiff Gavi Capital who subrogated the third party's floor, and from June 2, 2015 to the plaintiff Gavi Capital who subrogated the third party's floor, interest or delay damages.

B. Determination

The sales contract of each of the instant products in Article 9 provides that "(1) and Byung (the defendant) enter into and implement this contract is consistent with the respective intended business of Eul, Byung's respective intended business, and it does not violate the laws and regulations of Eul, Byung's foundation, and other relevant regulations, and that "B and Byung shall compensate Gap (the third party's floor) for all damages arising therefrom if they violate them."

The term “statement and guarantee” refers to a clause that requires a party to nonperformance of obligation to make a statement and to guarantee its authenticity in entering into a contract. In M&A transaction aimed at transferring corporate control or management rights, it is widely used in that it is practically difficult for a seller to specifically grasp all the current status of the designated enterprise which is the object of transaction and to enter into a contract. Such statement and guarantee clause is merely a provision that guarantees the authenticity of the premise of entering into a contract. Such statement and guarantee clause can be interpreted as a provision that guarantees a seller’s statement and guarantee. Furthermore, if the parties are to compensate for damages equivalent to the benefits accruing from nonperformance of obligation, even if the parties fail to perform the agreed terms and conditions which are null and void due to a violation of mandatory laws and regulations, the parties to the contract may, on the basis of the provision that provides the above statement and guarantee clause, exclude the application of mandatory laws or avoid the agreement that is void. Therefore, if part of the agreement becomes null and void, the parties’ statement and guarantee clause can not seek damages against the debtor.

As seen earlier, the second purchase agreement on the sales contract of each of the instant products or the Defendant’s promise to purchase was null and void due to the violation of the Agricultural Cooperatives Act, which is a mandatory provision. Even if the Defendant did not state to the Plaintiffs that the second purchase agreement becomes null and void due to the violation of the mandatory provision, it would result in the Plaintiffs’ claim for damages equivalent to the purchase price to the Defendant on the basis of the statement and guarantee under Article 9 of the respective sales contract of the instant product, which is a mandatory provision, to the effect that the purport of the legislation of the Agricultural Cooperatives Act, which is a mandatory provision, would be revoked.

Therefore, the 1st preliminary claim of the plaintiffs is without merit to examine further.

4. Determination as to the second preliminary claim by the plaintiffs

A. The plaintiffs' assertion

Although the head of the Defendant’s association and the directors could fully know the fact that the Defendant’s obligation to purchase red ginseng products constitutes a substantial guarantee obligation at the time of the conclusion of each of the instant product sales contract, and thus, it was in violation of the provisions of the Agricultural Cooperatives Act that prevented the Defendant from guaranteeing another person’s obligation, they agreed on all of the conclusion of each of the instant product sales contract including the statement and guarantee provisions through the resolution of the board of directors. The Defendant’s association head promised to faithfully perform the Defendant’s secondary obligation to purchase red ginseng products, and the Defendant’s association head promised to faithfully perform the Defendant’s secondary obligation to purchase the red ginseng product to Nonparty 2 of the Plaintiff Gai Capital, even if the Gai did not purchase the red ginseng product of this case to Nonparty 2 of the Plaintiff Gai Capital, even if the Gai did not sell the red ginseng product of this case, so that the Defendant would have been aware of the fact that each of the instant product sales contract is valid and that the Defendant’s performance

In addition, in collusion with the head of the Defendant’s association Nonparty 3, the head of the Defendant deceivings the Plaintiffs as if there was sales of the tent although there was no actual sales by taking stock transfer or rolling 1) actions with respect to red ginseng products kept by the Defendant, in collusion with the management of the tent (Chapter 2).

As a result, Plaintiff Gavi Capital, who was erroneous, suffered damages by concluding the loan contract of this case and providing KRW 5 billion to the third party's floor, and as a result, the Defendant's association president and directors' tort is recognized inasmuch as Plaintiff Gavi Capital, who entered into the loan contract of this case and the second loan contract of this case and the second loan contract of this case incurred damages by paying KRW 5 billion to the third party's floor. Therefore, the Defendant is liable to compensate the Plaintiffs for the performance of the profit equivalent to the purchase price as damages incurred to the Plaintiffs pursuant to Article 756 of the Civil Act (Article 756 of the Civil Act) or the Defendant's employee's employer's liability for the illegal acts committed by the principal of the Defendant association (Article 35 (1) of the Civil Act), and the Defendant is liable to pay to the Plaintiffs the same amount as that of each preliminary claim of this case.

B. Determination as to the First Claim

1) According to the overall purport of evidence Nos. 16-1, 2, 19, 20, 21, 22, 24, 28, 29, and 4 and 8 evidence Nos. 16-1, 2, 19-2, 20, 21, 224, 28, 29, and 4 and 8, the Defendant’s partnership head and directors agreed to conclude each of the of the instant products sales contracts through a resolution by the board of directors. In addition, the Defendant’s association head prepared a letter of promise to purchase red ginseng products to the effect that the Defendant confirms that the Defendant would faithfully perform the secondary purchase obligation pursuant to the 1 products sales contract of this case to Nonparty 2 of the Plaintiff KTF Capital’s employees and Nonparty 2 of the instant red ginseng products, and that the Plaintiffs purchased red ginseng products of this case before the conclusion of each of the instant loans contract and examined the Defendant’s red ginseng products sales contract of this case, and concluded a payment guarantee agreement with each of this case.

2) However, in light of the following circumstances acknowledged by comprehensively taking into account the purport of the entire arguments, it is insufficient to recognize that the above facts alone are insufficient to recognize that the president and directors of the defendant's association have induced the plaintiffs by intention or negligence, or caused the plaintiffs to create a false trust, and there is no other evidence to prove otherwise.

① It is difficult to view that the Defendant’s president and directors knew or could have known that the provisions on the Defendant’s secondary purchase obligation under each of the instant contracts for the sales of each of the instant products are invalid under the Agricultural Cooperatives Act, which is a mandatory law, solely on the ground that the Defendant’s association’s president and directors were in charge of the business of the Defendant Union established under the Agricultural

② In examining the loan of red ginseng, it is difficult to readily conclude that, in the instant product sales contract, the Plaintiffs did not lend KRW 5 billion each of the third floor and third floor, in the absence of the Defendant’s second purchase agreement, inasmuch as not only the Defendant’s second purchase agreement but also the establishment of a security for transfer of red ginseng products and the joint and several sureties’s joint and several sureties, as well as the Defendant’s second purchase agreement.

③ The principal cause for which disciplinary action was referred by the head of the defendant cooperative and officers and employees under the Agricultural Cooperatives Act cannot guarantee the obligations of others, and thus, the defendant violated the laws and regulations by providing a de facto guarantee to the defendant at the red ginseng product sales contract similar to each of the instant products sales contract, even though the defendant cannot guarantee the obligations of others. Therefore, the fact that the above disciplinary action may constitute a tort against the defendant cannot be seen as having been committed by the head of the defendant cooperative, officers and employees.

C. Determination as to the second proposal

갑 제3호증의 3, 갑 제27부터 29, 44호증의 각 기재, 당심 증인 소외 3의 증언에 의하면, ㉠ 피고 조합장 소외 3이 2012. 2. 27. ‘당 조합은 2012. 2. 24.자로 주식회사 삼마루와 체결한 인·홍삼 매매계약서 의거 해당 물량의 수매를 완료하여 해당 물량(31,939kg)을 귀사에 인도하였으며, 홍삼제품가공위탁계약에 의거 홍삼제품 가공을 위하여 당 조합에서 보관중임을 확인합니다'라고 기재된 보관증을 작성하여 삼마루에 교부한 사실, ㉡ 위 소외 3이 2012. 3. 21. ‘당 조합은 2012. 3. 30.자로 주식회사 삼마루이호와 체결한 인·홍삼 매매계약서에 의거 해당 물량의 수매를 완료하여 해당 물량(33,342.3kg)을 귀사에 인도하였으며, 홍삼제품가공위탁계약에 의거 홍삼제품 가공을 위하여 당 조합에서 보관중임을 확인합니다'라고 기재된 보관증을 작성하여 삼마루이호에 교부한 사실, ㉢ 위 소외 3이 이 사건 각 계약에 의한 홍삼제품 공급 중 일부를 재고이동 또는 롤링을 통하여 처리하도록 직원들에게 지시한 사실, ㉣ 이러한 재고이동은 재정상태가 좋지 않았던 천지양의 자금융통을 위하여 피고의 조합장 소외 4와 천지양이 협의하여 이루어진 사실을 인정할 수 있으나, 앞서 든 증거 및 갑 제14, 19, 20, 24, 36호증, 을 제8, 14호증의 각 기재에 변론 전체의 취지를 종합하여 인정되는 아래와 같은 사정에 비추어 보면 위 인정사실만으로는 피고의 조합장 소외 4가 직접 원고들을 기망하였거나 과실로 천지양과 불법행위를 공모 또는 방조하여 원고들에게 손해를 입혔음을 인정하기 부족하고 달리 이를 인정할 증거가 없으므로, 원고들의 이 부분 주장은 이유 없다.

① The delivery of the above custody certificate to Nonparty 3 under the name of the Defendant Union was made by Nonparty 3 on February 24, 2012 and March 21, 2012, which was concluded on March 20, 2012 by each of the loan contracts of this case, and on March 20, 2012, it is difficult to deem that the above custody certificate was concluded by the Plaintiffs due to the mistake of the Plaintiffs or the payment of loans under the above contract. Therefore, it is difficult to recognize that Nonparty 3’s act of preparing custody certificate was a deception against the Plaintiffs, and there is no other evidence to acknowledge it (this is difficult to accept the Plaintiffs’ above custody certificate as an important document to be submitted to the Plaintiffs, who is the lender, and if Nonparty 3 did not make a false custody certificate to the lender, it was difficult to make payment to the Plaintiffs on the ridge, who was the above ridge, as stated in Article 8(5) of each of the loan contracts of this case, on the ground that it was merely a circumstance after each of the loan contracts of this case.

② Even if Nonparty 3, in consultation with the officers of the Yangyang, ordered the Defendant’s employees to move stocks to a special purpose corporation (SPC) created prior to the instant loan contract and the product sales contract, this does not constitute deception against the Plaintiffs, which had no contractual relationship with the Choyangyang at the time of the instant loan contract. Moreover, even if Nonparty 3 instructed Nonparty 3 to sell the pre-existing stocks in collusion with the officers of the Yangyangyangyang, it cannot be deemed that the Plaintiff entered into the instant loan contract due to such act, as it was conducted prior to the instant loan contract. In addition, even if Nonparty 3 instructed Nonparty 3 to sell the rolling act to the ridge and the ridge of the floor which was considered as the loan received under each of the instant loan contracts, it is merely the circumstances after the conclusion of the loan contract and the payment of the loan.

③ Even if the loan contract of this case was concluded in close connection with all of the parties to each of the loan contracts of this case, as long as the Defendant was not the party to each of the loan contracts of this case, it is difficult to see that the Defendant was liable to notify the Plaintiffs of “the fact that the Defendant purchased high-value of the red ginseng products owned by Boyangyang for the astronomical financial method and accounts in document form, the so-called inventory transfer or rolling act was done,” and there is no other evidence to acknowledge the existence of the duty of due care. Thus, it cannot be viewed that there was any negligence on the part of Nonparty 3.

④ The fact that the Plaintiffs were unable to recover loans under each of the instant loan agreements was due to the fact that it was impossible for the Defendant to perform the obligation to purchase under each of the instant contract for the purchase of each of the instant products. As such, it is difficult to view that the Defendant purchased a high-priced red ginseng from the Nayangyang, thereby reducing the responsibilities of Nayangyang’s property. Rather, it is difficult to recognize a proximate causal relationship between the Defendant’s rolling act and the Plaintiffs’ damages.

D. Sub-committee

Therefore, the second preliminary claims of the plaintiffs, which are premised on the defendant's partnership president and directors' illegal acts, are without merit.

5. Determination as to the third preliminary claim of Plaintiff Gavi Capital

A. The plaintiff Gavi Capital's assertion

In a case where each of the instant contracts is invalid, each of the instant contracts entered into in the entirety between the same parties on the same day is null and void, and therefore, 4,502,330,885 won, which the Defendant received from the third party’s floor as the purchase price of red ginseng raw materials and the processing fee, shall be returned to the Plaintiff who subrogated to the third party.

On the other hand, the Defendant paid KRW 3,489,181,388 on several occasions to the third party floor, which led to the Defendant’s appropriation of the above obligation to return unjust enrichment to the third party’s floor and the principal amount of KRW 1,489,767,671 remains.

Therefore, the defendant is obligated to pay interest or delay damages from June 1, 2015, to the plaintiff 1,489,767,671 won and the last repayment to the plaintiff 1,489, 767,671 won on behalf of 3rd party.

B. Determination

As seen earlier, the part concerning the Defendant’s secondary purchase obligation of each of the instant sales contracts is null and void due to the violation of mandatory law. The first raw material and the sales contract of this case, the first processing consignment contract and the first lending contract, and the second raw material and the sales contract of this case, and the second processing consignment contract and the second lending contract are closely connected and collectively concluded.

However, in light of the fact that the purpose of each of the above contracts is not the same as that of each of the above contracts, and that some of the parties to each of the above contracts overlap, and in particular, the defendant is not a party to each of the above contracts, it is insufficient to recognize that each of the above contracts can be null and void because the part concerning the defendant's secondary purchase obligation of each of the above contracts of this case becomes null and void, and there is no other evidence to acknowledge that each of the above contracts of this case is null and void.

Therefore, the Plaintiff’s third preliminary claim of the Gavi Capital, which is premised on the invalidity of each of the instant loan contracts, is without merit.

6. Conclusion

Therefore, the plaintiffs' claim of this case is dismissed in its entirety due to the lack of reason, and the judgment of the court of first instance is just in conclusion with respect to the plaintiffs' primary claim, and all appeals are dismissed in its entirety, and each conjunctive claim of the plaintiffs added in the trial is dismissed in its entirety. It is so decided as per Disposition.

Judges Kim Jong-ho (Presiding Justice)

Note 1) The term “rawlsing” does not purchase and process a new red ginseng material with funds received from the third floor or ridges of the Defendant, but it means that the Defendant purchased and processed the inventory of red ginseng product stored in the Defendant’s warehouse pursuant to the previous Red Ginseng Product Sales Contract prior to the instant red ginseng product sales contract, and then deals with the accounts without actual movement as if it again purchased the inventory of red ginseng product from the tent or slutin ginseng, etc., and sold the third floor, slutin.