2015Da45918 Return of Fraudulent Gains

A

1. B

2. C

Busan High Court Decision 2014Na6091 Decided June 30, 2015

June 29, 2017

The judgment below is reversed, and the case is remanded to Busan High Court.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

Based on its stated reasoning, the lower court rejected the Defendants’ assertion that the sales balance stipulated in the instant sales contract was KRW 100 million, and in addition, it additionally received KRW 100 million as the sales balance.

In light of the records, the lower court did not err by misapprehending the facts against logical and empirical rules.

2. Regarding ground of appeal No. 2

A. The lower court determined as follows: (a) from October 13, 2010 to October 2, 2011, the Plaintiff agreed to bear interest on loans to Defendant C (hereinafter “SP”); (b) the Plaintiff’s interest on loans to the SPPP from October 13, 2010 to the amount of interest on loans; (c) the Plaintiff’s interest on loans to the SPPP from October 13, 201 to KRW 5,821,684 was due; (d) the Plaintiff, the Plaintiff, E, and F paid KRW 30,210,00 to the Defendant C as the interest on the SPP from September 25, 201 to January 24, 201; and (e) determined that the Plaintiff paid KRW 13,70,000,000 to the Defendant C; and (e) the Plaintiff paid the interest on loans to the SPPPP from February 28, 2011 to KRW 1084,5010

B. The Defendants asserted in the grounds of appeal that: (a) the Plaintiff, E, and F paid KRW 30,210,000 to the Defendant C from September 25, 201 to January 24, 201; (b) the interest on loans to the so-called e-commerce that the Defendants borne by the Plaintiff on behalf of the Plaintiff is KRW 57,975,002; and (c) E was fully used as interest; and (d) the amount of KRW 13,70,000 remitted to the Defendant C on March 2, 2011 was fully used as interest; and (e) the lower court erred by misapprehending the necessary facts without exhaust all necessary deliberations. In light of the relevant legal principles and records, the lower court did not err by misapprehending the logical and empirical rules that the Plaintiff, E, and F paid to the Defendant C from September 25, 201 to January 24, 2011.

D. However, it is difficult to accept the remaining judgment of the court below for the following reasons.

According to the records, it is evident that the Defendants’ interest from October 13, 2010 to January 28, 201 is KRW 57,975,002, and the Plaintiff asserted that he/she paid the interest on loans to the SPP from February 28, 201, and that he/she directly paid the interest on the SPP from February 28, 201, the Plaintiff’s assertion that he/she remitted KRW 13,70,00 to Defendant C as interest on loans to SPP is that at least part of the Plaintiff’s assertion that he/she directly paid to the SPP as interest on the SP.

If so, the lower court should have determined whether the aforementioned amount was paid as interest on loans to the so-called - which the Defendants borne from October 13, 2010, on the basis of the financial transaction details, and clearly stated the Plaintiff’s assertion on KRW 13,700,00 that E remitted to Defendant C on March 2, 2011. Nevertheless, the lower court recognized the interest on loans to the so-called - which the Defendants borne from October 13, 2010 as KRW 55,821,684, and determined that E transferred KRW 13,70,000 to Defendant C on March 2, 201 by deducting the Defendants’ interest from the Defendant’s interest payment amount, thereby adversely affecting the conclusion of the judgment by failing to exhaust all necessary deliberations and violating logical and empirical rules.

3. Conclusion

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Dong-won

Justices Kim Yong-deok

Justices Kim In-bok, Counsel for defendant

Justices Kim Gin-young