2016 Gohap3808 Damage, etc.

A

the deceased B’s taking over of the action

1.C

2.D

3.E

4.F

December 20, 2017

February 21, 2018

1. All of the plaintiff's claims are dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

Defendant C, Defendant F, within the scope of the property inherited from the deceased B,

D and E shall pay 200,456,622 won and each of the above amounts at the rate of 15% per annum from the day following the delivery of a copy of the complaint of this case to the day of full payment.

1. Basic facts

The deceased B (hereinafter referred to as “the deceased”) died on April 11, 2017. The Defendants, the inheritor of the deceased, filed a qualified acceptance report with the Busan Family Court as to the inheritance of the deceased, and received an adjudication on July 28, 2017 from the above court on the acceptance of the qualified acceptance report by the Busan Family Court as to the inheritance of the deceased, can be recognized if there is no dispute between the parties, or if they gather the purport of the entire pleadings on the evidence No. 1 and No. 1.

2. Determination as to the cause of action

A. The portion related to the real estate located in Busan Metropolitan Ri-gun

1) The plaintiff's assertion

① On February 26, 2014, the Deceased purchased I’s land and building and J’s land (hereinafter collectively referred to as “the instant real estate”) in collaboration with the Plaintiff and H, and completed the registration of ownership transfer under the Plaintiff’s name of K, H, and the Deceased on the same day, the Deceased offered the said real estate as security to the East Busan Agricultural Cooperative on the same day, and borrowed KRW 250 million. On December 23, 2012, the Deceased offered the said real estate as security to the East Busan Agricultural Cooperative, and additionally borrowed KRW 230 million. However, the Deceased embezzled embezzled KRW 162 million as construction cost for remodeling the said real estate among the above loans and embezzled KRW 318 million.

② On the other hand, around December 2015, the Deceased embezzled the Plaintiff’s share without paying the lease deposit and the rent for a ten-month rent, even though it was leased with the amount of KRW 30 million as the lease deposit and KRW 2.6 million as the monthly rent.

③ Therefore, the Defendants, the inheritor of the deceased, are liable to compensate the Plaintiff for the said money within the scope of property-related crimes inherited from the deceased.

2) Determination

A) Determination as to the above (1) argument

According to the records, Gap evidence Nos. 1 and 3, and evidence Nos. 4-1 through 3 as to the real estate of this case, on February 26, 2014, the registration of transfer of ownership (546 million won each) caused by sale and purchase on January 7, 2014 under the name of the deceased, H and the plaintiff, K, and at the same time, the registration of establishment of a neighboring agricultural cooperative as the mortgagee, the maximum debt amount of which is KRW 30 million, was completed on December 23, 201. However, considering that the registration of change of the maximum debt amount of the above right to collateral security was completed by changing the maximum debt amount of the above right to collateral security to KRW 576 million on December 23, 201, the plaintiff and the deceased jointly invested in the real estate of this case, etc., and that there was no evidence that the plaintiff used the above amount as the witness of this case as well as the amount of the loan of this case.

Therefore, this part of the Plaintiff’s assertion is difficult to accept.

B) Determination as to the above argument

Gap evidence 3, Gap evidence 4-1 to 3, Eul evidence 8-1, and Eul witness testimony, among the amount equivalent to the lease deposit and rent of the I Ground Building in Busan Gun, the deceased's testimony

It is difficult to view that there is a duty to return the amount equivalent to the Plaintiff’s share, and there is no other evidence to acknowledge it, and the Plaintiff’s assertion is difficult

B. The part related to purchase price for the land located in Busan Shipping Daegu Mdong

1) The plaintiff's assertion

Around February 2014, the Deceased recommended the Plaintiff to jointly purchase nearby real estate amounting to KRW 220 million, and the Plaintiff received a loan of KRW 4.10 million per month from the Plaintiff and remitted the said money to the Defendant. Meanwhile, the Deceased purchased the said real estate with the said money received from the Plaintiff and sold it to the Plaintiff, and then purchased the land for electric source located in the Gyeongnam-gun, Busan-gun. However, the Deceased purchased the said money with the said money again. Since the horses that the Deceased provided to the Plaintiff are false as seen above, the Deceased acquired or embezzled the said money from the Plaintiff.

Therefore, the Defendants, the inheritor of the deceased, are liable to compensate the Plaintiff for the said money within the scope of the property inherited from the deceased.

2) Determination

According to the records in Gap evidence No. 5, the plaintiff can be found to have received 10 million won on February 4, 2014 on behalf of the plaintiff. However, it is insufficient to find that the above recognized facts, Gap evidence No. 7, and witness testimony alone are insufficient to recognize that the deceased acquired the above money from the plaintiff or embezzled the above money, and it is difficult to accept this part of the plaintiff's assertion, since there is no other evidence to support this.

C. The part related to the purchase price for the purchase of the land at Ansan-ri, Gyeong-gun, Gyeongnam-gun, Chungcheongnam-do.

1) The plaintiff's assertion

On December 2, 2014, the Deceased purchased the land in the name of the Plaintiff through “O, notwithstanding the absence of an intention to purchase 255 square meters of the land located in the Haak-gu, Gyeongnam-gun, Gyeongnam-gun, the deceased, in the name of the Plaintiff.

The phrase "States" is false and acquired by receiving KRW 81,80,000 from the plaintiff for the price, etc.

Therefore, the Defendants, the inheritor of the deceased, have a duty to compensate for the said money within the scope of the property inherited from the deceased.

2) Determination

In view of the overall purport of the pleadings in the statement No. 9, the Plaintiff’s statement can be acknowledged that KRW 40 million was remitted to the deposit account in the deceased’s name on December 5, 2014 under the Plaintiff’s name, i.e., the Plaintiff’s son, but it is insufficient to recognize that the deceased acquired the above money from the Plaintiff, and there is no other evidence to support the Plaintiff’s assertion, and thus, it is difficult to accept this part of the Plaintiff’s assertion.

D. The part related to Busan Shipping Daegu Q real estate

1) The plaintiff's assertion

① On December 26, 2014, the Deceased purchased real estate in Busan Shipping Daegu Q from the Plaintiff and completed the registration of ownership transfer in joint name with the Plaintiff, the Deceased borrowed KRW 350 million as collateral, and used KRW 120 million out of which as purchase price for the Ambsinsan, Gyeongnam-gun, Gyeongnam-gun, and embezzled at will, using it.

② At that time, the Deceased did not pay to the Plaintiff the amount equivalent to the said deposit and the share of the Plaintiff during the rent of 22 months, even though he/she leased the said real estate to a third party by setting the lease deposit at KRW 30 million and KRW 700,000 per month.

③ The Deceased, on March 31, 2016, paid KRW 100 million out of the loans offered to the Jinju-gu Agricultural Cooperative as collateral to the said real estate to the Jinju-gu Agricultural Cooperative, even though he/she paid the said money as the balance.

The embezzlement did not pay any balance and embezzled.

④ Therefore, the Defendants, the deceased’s inheritor, within the scope of the property inherited from the deceased, have a duty to compensate for KRW 110 million out of the lease deposit and KRW 7.7 million out of the rent, equivalent to the Plaintiff’s share of KRW 220 million out of the sum of the above embezzled money, and KRW 15 million out of the lease deposit.

2) Determination

According to the records in Gap evidence No. 10, Eul evidence No. 2, and Eul evidence, on December 26, 2014, with respect to Q&359 square meters in Busan Shipping Daegu, Busan, the registration of ownership transfer was completed in the future of the plaintiff and the deceased on December 26, 2014. At the same time, the registration of the establishment of a neighboring mortgage with the mortgagee at the same date as the Saemaul Bank of Korea and the maximum debt amount of 416 million won was completed on March 31, 2016, the registration of the establishment of a new mortgage with the mortgagee at the same date was cancelled on March 31, 2016, the registration of the establishment of a new mortgage with the Ji-ri Agricultural Cooperatives and the maximum debt amount of KRW 546 million was completed on the same day on the same date, and there was no evidence to acknowledge that the plaintiff and the deceased, the lessee, the lessee, the lease deposit, the lease deposit amount of KRW 30 million, the lease deposit amount of KRW 200,200,000.

Therefore, it is difficult to accept this part of the Plaintiff’s assertion.

E. The part related to Busan Shipping Daegu S apartment (T)

1) The plaintiff's assertion

around August 7, 2015, the Deceased received from the Plaintiff KRW 687 billion from TT 102, 2707, and 3107 as the purchase fund, and received KRW 213,300,000 from the Plaintiff, with the purchase fund of KRW 120,000,000 from the above 120,000 and KRW 2133,300,000 from Busan.

11,145,203 won as a loan to the Plaintiff’s Suhyup Cooperative was subrogated, and the remaining 219,54,797 won was embezzled.

Therefore, the Defendants, the inheritor of the deceased, are obligated to compensate for the above embezzlement within the scope of the property inherited from the deceased.

2) Determination

In light of the overall purport of the arguments in the statement No. 11-5, No. 12-1 and No. 12-2, we examine the following facts: (a) under the Plaintiff’s name as a deposit account in the deceased’s name; (b) KRW 10 million on August 4, 2015; (c) KRW 87 million on July 8, 2015; (d) KRW 250 million on August 28, 201; (e) KRW 180 million on October 19, 21, KRW 140 million on the same year; and (e) KRW 70 million on October 23, 2015; and (e) KRW 175 billion on the same year; and (e) KRW 70 million on June 17, 2015; and (e) KRW 105 billion on the record of the ownership transfer registration as alleged by the Plaintiff on June 23, 2015; and (e) KRW 1075 billion on the same date.7 billion.5 billion.

Therefore, it is difficult to accept this part of the Plaintiff’s assertion.

F. The part related to the purchase fund of the large-scale apartment

1) The plaintiff's assertion

The deceased shall have the right to jointly purchase 18 square meters in the amount of KRW 260 million to the Plaintiff.

Due to the fact that the Plaintiff acquired or embezzled KRW 130 million from the Plaintiff as the purchase price, the Defendants, the inheritor of the Deceased, have a duty to compensate the Plaintiff for the money within the scope of the property inherited from the Deceased.

2) Determination

Considering the overall purport of the arguments in the statement No. 13-1 through No. 4 of the evidence No. 13, the following facts can be acknowledged: (a) the Plaintiff’s P’s name was transferred to the deposit account in the deceased’s name in the name of the deceased; (b) KRW 10,007,000 on December 18, 2015; (c) KRW 9,450,00 on January 11, 2016; and (d) KRW 410,00 on December 23, 2015; and (c) KRW 10,000 on January 11, 2016. However, there is insufficient evidence to acknowledge that the deceased acquired or embezzled the said money from the Plaintiff solely based on the fact of recognition, statement No. 8, and witness testimony.

Therefore, it is difficult to accept this part of the Plaintiff’s assertion.

G. (tentative Name) The portion related to charges of W Regional Housing Association

1) The plaintiff's assertion

On February 29, 2016, upon the solicitation of the deceased, the Plaintiff joined the W regional association (tentative name) in the name of X, his/her father, and the Deceased received KRW 110 million from the Plaintiff as a member’s share of the Plaintiff and embezzled KRW 40 million out of that. As such, the Defendants, the deceased’s heir, are liable to compensate for the said embezzlement within the scope of the inherited property.

2) Determination

According to the statements in evidence Nos. 7, 14, and 15, the Plaintiff borrowed KRW 100 million from a fisheries cooperative on February 26, 2016. The Plaintiff borrowed KRW 110 million in the name of X, and on February 29, 2016, between the Busan Shipping Daegu Y, 3rd floor located (tentative name) and the WW Regional Housing Association on February 29, 2016, total of the union members’ contributions to the Plaintiff.

Although it can be recognized that the contract form for joining the association members was prepared, it is not sufficient to recognize that the deceased received KRW 110 million from the plaintiff as a partner's share in the amount of 40 million among them only with the above-mentioned facts, Gap evidence No. 7, and witness testimony L, and there is no other evidence to acknowledge it.

Therefore, it is difficult to accept this part of the Plaintiff’s assertion.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit, and it is so decided as per Disposition.

Judges Lee Jae-deok

Judges Kim Jin-won

Judges Dominsung