[Plaintiff-Appellant] Plaintiff (Law Firm Snung, Attorney Yu-ju, Counsel for plaintiff-appellant)

Co., Ltd.

April 15, 2010

1. The defendant shall pay to the plaintiff 150,000,000 won with 30% interest per annum from October 8, 2008 to the day of full payment.

2. The plaintiff's remaining claims are dismissed.

3. 1/10 of the costs of lawsuit shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

4. Paragraph 1 can be provisionally executed.

The defendant shall pay to the plaintiff 150,000,000 won with 40% interest per annum from October 8, 2008 to the day of complete payment.

1. Basic facts

A. On September 12, 2008, Nonparty 1 sold 3.12 billion won to the Pacific shop located in Songpa-dong 19, Songpa-gu, Seoul (hereinafter “instant store”). On September 12, 2008, Nonparty 1 requested the Plaintiff to lend money while the intermediate payment is required. On October 8, 2008, Nonparty 1 borrowed KRW 150 million from the Plaintiff at the interest rate of 5% per annum.

B. The Defendant’s trade name prior to the change is “Japan Investment Finance Co., Ltd.,” and Nonparty 1, 2, 3, 4, and 5 took over the shares from Nonparty 6, etc. on February 18, 2009, and changed the trade name to “share Smart Co., Ltd.,” such as at present. Nonparty 1 and 5 were the Defendant’s outside director, Nonparty 2 was the representative director, Nonparty 3 was the internal director, and Nonparty 4 was the auditor, respectively.

C. Around May 22, 2009, the Defendant registered the instant store as its place of business, and operated Smarkets at the instant store around that time.

D. Around July 2009, the Plaintiff requested Nonparty 1 to jointly and severally pay the above loan debt with the Defendant, and Nonparty 1 entered as “the Plaintiff, the Defendant (the representative Nonparty 2 and 3), the amount of loan KRW 150,000,000,000 won, interest per 4%, the due date for payment, and February 8, 2009” (Evidence 1-2, hereinafter “the loan certificate of this case”) from Nonparty 1, as of October 7, 2008.

[Evidence] Facts without dispute, Gap evidence Nos. 1-1, 2, 3, 11, Eul evidence No. 1-1, Eul evidence No. 1, the testimony of non-party 8 and the purport of the whole pleadings

2. The plaintiff's assertion and judgment

A. The plaintiff's assertion

Nonparty 1, who said himself as the actual president of the Defendant, acted as the president, and as such, Nonparty 1 had no choice but to believe that Nonparty 1 had the authority to represent the Defendant. Therefore, the Defendant should be held liable for the expressive representative regarding the preparation of the instant loan certificate by Nonparty 1.

B. Determination

Article 395 of the Commercial Act shall apply mutatis mutandis not only to cases where an apparent representative director performs a juristic act using his/her own name, but also to cases where he/she performs an act using another representative director's name without using his/her own name (see Supreme Court Decision 2002Da40432 delivered on July 22, 2003).

In light of the following circumstances, Gap's evidence Nos. 4, 6, 8, and 9, and the witness's testimony and the purport of the whole pleading, i.e., ① the non-party 1 played a leading role in opening the store of this case, such as purchasing the store of this case and providing the defendant's operational funds, ② the non-party 1 is an advanced DNA representative director, and all the non-party 4, 3, and 5 registered as the defendant's executive officers are registered as the above company from the previous date; ③ the non-party 1 acted externally as the defendant's president from the purchase of the store of this case until preparing the loan certificate of this case to the plaintiff's president (the non-party 1 used the name "non-party 1" on behalf of the defendant (the non-party 5) and the non-party 7 also was issued a receipt of the non-party 1 under the name of the defendant, and the defendant's act of drawing up the revenue of this case to the non-party 1, the defendant's representative director of this case.

Therefore, the defendant is jointly and severally liable with the non-party 1 to pay the above loan and interest or damages for delay.

3. Conclusion

Therefore, the defendant is obligated to pay to the plaintiff interest or delay damages calculated by the rate of 30% per annum from October 8, 2008 to the date of full payment, which is 150 million won and 30% per annum (the plaintiff sought interest rate of 40% per annum, but the part exceeding 30% per annum of interest agreement is null and void pursuant to Article 2 of the Interest Limitation Act, and therefore the above part of the above claim exceeds the above rate is without merit). Thus, the plaintiff's claim of this case is justified within the above scope of recognition, and the remaining claim is dismissed as it is without merit. It is so decided as per Disposition.

Judges Yellow-gu (Presiding Judge)