209Na14019 Objection

Park A (53 years old, women)

1. MaximumB (before opening: Maximum B1, 62 years, and leisure);

2. KimB2 (54 years old, South)

3. Transfer (51 years old, 51 years old, 50)

Busan District Court Decision 2008Gadan167687 Decided July 17, 2009

March 19, 2010

April 23, 2010

1.The judgment of the first instance shall be modified as follows:

A. Compulsory execution based on the decision in lieu of the conciliation of July 2, 2007 in Busan District Court Decision 2006Kadan122208 against the Plaintiff:

1) Defendant LB shall only exceed the amount calculated by 590,359 won and the rate of 20% per annum from September 3, 2009 to the date of full payment:

2) Defendant KimB2 and LeeB3 are not allowed only to the portion exceeding the amount calculated at the rate of 20% per annum from September 3, 2009 to the date of full payment, each of which exceeds 885,541 won and the rate of 20% per annum.

B. The remainder of the Plaintiff’s remaining claims against the Defendants are dismissed. Until this judgment becomes final and conclusive, compulsory execution based on the executory exemplification of the decision in lieu of the conciliation on July 2, 2007 in Busan District Court 122208 case shall be suspended only on the part exceeding the money set forth in paragraph (a).

2. 1/10 of the total costs of litigation shall be borne by the Plaintiff, and the remainder by the Defendants, respectively.

3. The 1-C. A provisional execution may be effected.

The judgment of the first instance is revoked. The Busan District Court 2006Kadan122208 case against the plaintiff of the defendants shall not be subject to compulsory execution based on the decision in lieu of the conciliation of July 2, 2007.

1. Basic facts

A. The Defendants filed a lawsuit claiming an agreed amount against the Plaintiff et al. on July 2, 2007 against the Plaintiff et al. In addition to the agreed amount of KRW 750,000, KRW 7500, KRW 25,000, KRW 125,000, KRW 750, KRW 200, KRW 300, KRW 125,000, KRW 300, KRW 125,000, KRW 125,000, and KRW 1,25,000, from October 20, 2007 to June 20, 2007, the Defendants were jointly and severally liable to pay the Plaintiff the agreed amount of KRW 50,00, KRW 200, KRW 20,000, KRW 7,000 in lieu of the agreed amount of payment.

B. On August 17, 2009, the Plaintiff repaid KRW 6,500,00 to Defendant LB, and KRW 9,750,000 each to Defendant KimB2 and LeeB3. The Plaintiff repaid KRW 3,400,000 to the Defendants on September 2, 2009, and the Defendants distributed the said money at the ratio of KRW 2:3 (Defendant Choi 850,000, Defendant KimB2, LeeB3, 275,000, respectively).

【Ground of recognition-based dispute】 Facts without dispute, entries in Gap evidence 2, 8, and 9 (including provisional number), the purport of the whole pleadings

2. The plaintiff's assertion and judgment

A. The plaintiff's assertion

The plaintiff asserts that the compulsory execution based on the decision in lieu of the instant conciliation has to be denied, since all of the agreed amount obligations based on the decision in lieu of the instant conciliation have ceased to exist due to repayment.

B. Determination as to Defendant L2

The facts that the Plaintiff paid KRW 6,50,000 on August 17, 2009, which was after the decision in lieu of the instant conciliation, to the Defendant, and KRW 850,000 on September 2, 2009 are as seen earlier. Since the amount of the above repayment cannot be extinguished in entirety against the Defendant, it shall be appropriated for repayment in the order of statutory appropriation as set forth in Article 479 of the Civil Act. Therefore, the remaining obligations of the Plaintiff against the Defendant based on the decision in lieu of the instant conciliation shall be calculated at the rate of KRW 590,359, and damages for delay calculated at the rate of KRW 20% per annum from September 3, 2009 to the date of the last repayment.

1) On August 17, 2009, appropriation for the amount of KRW 6,500,000 in full.

A person shall be appointed.

6,50,000 won paid by the Plaintiff to the Defendant on August 17, 2009 was first appropriated for damages for delay that occurred until that day, and the remainder of 4,572,159 won was appropriated for the principal amount of KRW 6,00,000 and the principal amount of KRW 1,427,841 won (=6,00,000 - KRW 4,572,159) remains.

2) Appropriation of 850,000 won of the amount repaid on September 2, 2009

850,000 won paid by the Plaintiff to the Defendant on September 2, 2009 to the Defendant is 12,518 won for delay damages incurred from August 18, 2009 to September 2, 2009 (i.e., 1,427,841 won per X 20% per annum x 16 days/365 days). The remainder of 837,482 won is appropriated to the principal and is 590,359 won per principal (=1,427,841 won - 837,482 won).

C. Determination on Defendant KimB2, Lee B3

The Plaintiff’s repayment of KRW 9,750,00 on August 17, 200, each of the above Defendants’ repayment of KRW 1,275,00 on September 2, 2009, and KRW 1,275,00 on September 2, 2009, after the decision in lieu of the instant conciliation, is as seen earlier. Since the above repayment amount is not extinguished in entirety, it shall be appropriated for repayment in accordance with the order of statutory appropriation as prescribed in Article 479 of the Civil Act. Accordingly, the remaining obligations against the above Defendants based on the decision in lieu of the instant conciliation shall be KRW 885,541 on September 3, 2009 and damages for delay calculated at the rate of KRW 20% per annum from September 3, 2009 to the date of full payment.

1) On August 17, 2009, each of the repayment amounting to KRW 9,750,000.

A person shall be appointed.

Each KRW 9,750,00,00 paid by the Plaintiff to Defendant KimB2 and LeeB3 on August 17, 2009, shall be first appropriated for KRW 2,891,764 for each damages for delay incurred up to that day, and the remaining KRW 6,858,236 shall be appropriated for KRW 9,00,00 for principal and KRW 2,141,764 (i.e., KRW 9,00,000 - KRW 6,858,236) for principal and KRW 2,141,764 (i.e., KRW 6,85,00) on September 2, 2009.

Each 1,275,00 won paid by the Plaintiff to Defendant KimB2 and LeeB3 on September 2, 2009 to 18,777 won, respectively, for damages for delay that occurred from August 18, 2009 to September 2, 2009 (=2,141,764 won per annum x 20% per annum x 16 days/365 days). The remaining 1,256,223 won each are appropriated for principal and paid to principal amount to 885,541 won (=2,141,764 won - 1,256,223 won).

D. Sub-committee

Therefore, compulsory execution based on the decision in lieu of the instant conciliation against the Plaintiff is limited to the portion exceeding the amount calculated by the rate of 20% per annum from September 3, 2009 to the date of full payment. Defendant KimB2, and this BB3 shall be dismissed only to the portion exceeding the amount calculated by the rate of 885,541 won per annum from September 3, 2009 to the date of full payment.

3. Conclusion

Therefore, the plaintiff's claim against the defendants shall be accepted within the scope of the above recognition, and the remaining claims shall be dismissed, without merit. Since the judgment of the court of first instance is unfair with different conclusions, part of the plaintiff's appeal shall be accepted and the judgment of the court of first instance shall be modified as above. It is so decided as per Disposition.

The presiding judge, chief judge, and red boat;

Judges Kim Jong-chul

Judge Jeon Sung-sung