Alcarwon Co., Ltd.

Defendant (Attorney Kang Dong-hee, Counsel for defendant-appellant)

Seoul Southern District Court Decision 2011 Ghana170661 Decided May 15, 2012

January 17, 2013

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

1. Purport of claim

The defendant shall pay to the plaintiff 2,675,105 won with 20% interest per annum from the day after the delivery of a copy of the complaint of this case to the day of complete payment.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Basic facts

A. U.S. E.L. L. L.C. (hereinafter “L.”) entered into a contract with the Defendant to lend the two E.L. water purifiers to the Defendant by setting the lending period of KRW 36 months, monthly lending fee of KRW 44,00, and the lending amount of KRW 1,634,000.

B. The Defendant paid the monthly rent on September 5, 2006 and October 31, 2006 to two of the above ion water purifiers, and the total rent paid up to that time is KRW 592,895.

C. Thereafter, on May 29, 2009, U.L. transferred the claim against the Defendant for the above loan fee to the Plaintiff, and on October 10, 201, notified the Defendant of this.

D. On the other hand, on January 28, 2008, the Defendant, who was working as the team leader of the Seoul branch of U.S. U.S. U.S. H. H. H. On the other hand, the U.S. District Court issued a summary order of KRW 361,00,000 by deceiving the 19 persons, including Nonparty 1, etc. to invest in U.S. in U.S. in U.S. in U.S. although he claimed leasing business, he did not have the intent or ability to pay dividends properly to investors, although he did not intend to pay dividends, and received a total of KRW 361,00,000 by deceiving the Defendant to invest in U.S. in U.S. in U.S. in U.S., and did not make an act of importing U.S. investment to 19 persons, including Nonparty 1, etc. by soliciting investment in U.S. in U.S., and received the above KRW 361,00,00.

[Reasons for Recognition] Facts without dispute, Gap 1 to 4, and 11 (including each number; hereinafter the same shall apply), the purport of the whole pleadings

2. Determination

A. According to the above facts, barring any special circumstance, the Defendant is obligated to pay the Plaintiff the unpaid rental fee of KRW 2,675,105 (=1,634,000 +1,634,000 + 592,895) and damages for delay.

B. Judgment on the defendant's assertion

1) The Defendant asserts that the above lending contract entered into between the Plaintiff and U.D. is merely a nominal conclusion in order to conceal the act of fund-raising without permission from the Plaintiff. However, there is no evidence to acknowledge the Defendant’s assertion, and that the act of fund-raising without permission from the Plaintiff is unlawful, and as soon as it cannot be deemed that the water purifier lending contract entered into only on the pretext of its substance without permission from the Plaintiff (the Defendant is the person who directly, and the person who directly, allowed the use by the Plaintiff). The Defendant’s assertion above is without merit.

2) In addition, the defendant asserts that the plaintiff's claim for the lending fee to the defendant who suffered damage by investing the money in the U.S. as a company in fact identical to U.S., is against abuse of the right or good morals and other social order. However, the plaintiff and U.S. witness Eul- 3, 4, and Non-party 2's testimony as to the fact that the plaintiff and U.S. witness of the trial are the same company is insufficient to recognize it, and there is no other evidence to acknowledge it. Rather, in full view of the purport of the arguments as a whole, the plaintiff is a company established by U.S. investors who suffered damage due to U.S.'s act of fund-raising, and Non-party 3, a director of U.S., owned 10% of the plaintiff's shares against the plaintiff, and even if U.S. director of U.S. is the same company, the plaintiff's claim for the lending fee cannot be viewed as violating the abuse of rights or good morals and other social order, and there is no other evidence to support the defendant's argument.

3) The defendant has invested the amount of KRW 58,00,000 in U.S. and has a claim for return of investment equivalent to that amount. Since U.S. and the plaintiff are practically identical to the defendant, the plaintiff is responsible for returning the above amount of KRW 58,00,000 to the defendant, or even if the plaintiff is in the position of the transferee, the defendant's claim for return of the above investment in U.S. against U.D. against U.S. is already set-off in the plaintiff's claim at the time of the plaintiff's acquisition of the claim, which can be asserted that the defendant's claim for return of the above investment in U.S. against U.S. can be set-off against the plaintiff. Thus, the plaintiff's claim that the amount to be paid to the plaintiff is not remaining if the defendant set-off against the defendant's above claim for return of the above investment in U.S. against U.S., and the defendant

Therefore, it is not sufficient to acknowledge that the Defendant deposited KRW 58,00,000 in U.S. with the sole statement of U.S. 1 on whether the Defendant had a claim for the return of U.S. amount against U.S., and there is no other evidence to acknowledge that the Defendant paid U.S. amount to U.S., and the Defendant did not specifically assert and prove the grounds for the repayment of U.S. amount to U.S., although the Defendant asserted that the above grounds for the payment of the amount was an investment amount, and there is no evidence to acknowledge the existence of the Defendant’s claim for the return of U.S. amount against U.S.F., the Defendant’s above assertion on a different premise is without merit.

4) Lastly, the defendant asserts that the lease fee claim against the defendant was terminated by the extinctive prescription, but the lease contract between the Elophere and the defendant for the Elophere period is a contract for the lease of facilities provided by the agreement between the parties as to the disposal of the goods after the expiration of the lease period and the lease fee claim against the defendant. However, the lease contract between the Elophere and the defendant for the Elophere period is a contract for the lease of facilities with no support for the direct maintenance and management of the goods selected by the lessee for the leased facilities for a certain period, and is a contract for the lease of facilities as stipulated by the agreement between the parties (see, e.g., Supreme Court Decision 9Da1949, Jun. 12, 2001). The plaintiff's lawsuit of this case is clearly without merit since the defendant's claim was made on September 5, 2006 and Oct. 31, 206 by paying monthly lease fee for the two Elophere period.

3. Conclusion

Therefore, the plaintiff's claim of this case is justified, and the judgment of the court of first instance is just, and the defendant's appeal is dismissed as it is without merit. It is so decided as per Disposition.

Judges Noh Jeong-hee (Presiding Judge)