(영문) 서울고등법원 2020.11.19.선고 2020나2010679 판결

1. Of the judgment of the court of first instance, the remainder, excluding the part concerning the withdrawal of KRW 300,000,000 on February 28, 2014, shall be modified as follows:

A. The Defendant shall pay to the Plaintiff 5% annual interest per annum from October 8, 2013 to December 14, 2016, 15% per annum from December 15, 2016 to May 31, 2019, and 12% per annum from June 1, 2019 to the date of full payment.

B. The plaintiff's remaining claims are dismissed.

2. Of the total litigation costs, 60% is borne by the Plaintiff, and the remainder is borne by the Defendant, respectively.

3. Paragraph 1(a) of this Article may be provisionally executed.

Purport of claim and appeal

Purport of claim

With respect to KRW 897,926,502 and KRW 250,000 among them, the Defendant paid to the Plaintiff 897,926,500 and KRW 250,000 from September 26, 2013, KRW 347,926,502 from October 8, 2013, and KRW 300,000 from February 28, 2014 to the delivery date of a duplicate of the complaint of this case, 5% per annum from February 28, 2014 to the delivery date of each copy of the complaint of this case, and KRW 15% per annum from the next day to the full payment date (excluding KRW 300,00,000 and KRW 300,00 from the legal interest or delay damages, but the first instance court rejected it, since the Plaintiff did not appeal against this, it was excluded from the scope of the party trial).

Purport of appeal

Plaintiff: The judgment of the first instance is modified as follows. The Defendant shall pay to the Plaintiff the amount of KRW 597,926,502, and KRW 250,00,000,000, the amount of KRW 347,926,50,000 per annum from September 26, 2013 to December 14, 2016, and KRW 5% per annum from October 8, 2013 to December 14, 2016, and KRW 15% per annum from the next day to the date of full payment.

Defendant: The part against the Defendant in the first instance judgment shall be revoked, and the Plaintiff’s claim corresponding to the revocation portion shall be dismissed.

Reasons

1. Quotation of the first instance judgment

This court's reasoning is identical to the corresponding part of the judgment of the first instance except for dismissal or addition as follows. Thus, this court's reasoning is acceptable as it is in accordance with the main sentence of Article 420 of the Civil Procedure Act.

In addition, "The total amount of KRW 19,950,000 paid as rent is also paid on behalf of the plaintiff" is added to "the fourth 17th th th th th th th th th th th th th th th.".

○○ In the first instance judgment, the following three to six pages are modified as follows:

“O The Defendant asserts to the effect that KRW 64,316,394 out of the paid money was used for each Plaintiff as rent, on the pretext of contractual processing costs, etc. However, each of the entries in the evidence Nos. 16, 19, 20, and 31 in the evidence Nos. B, 16, 19, 20, and 31 is alone, that the amount of KRW 64,316,394 was used for each Plaintiff.

It is insufficient to recognize that the money paid under the name was used for the plaintiff, and it is not sufficient to recognize that the defendant paid the plaintiff the sum of KRW 19,950,000 as the rent from July 2, 2012 to October 2013, and there is no evidence to acknowledge otherwise.

○ In the first instance judgment, the last 7th eth eth 1st to 8th eth 1st eth eth eth eth eth eth eth eth eth eth eth eth eth eth eth eth eth eth eth eth eth eth eth eth eth eth eth eth eth eth e.

3. Such ratification shall be permitted with the knowledge of the disposition taken by an unentitled person and may be made explicitly or implicitly, and the declaration of such intent may also be detrimental to either the unentitled person or the other party. If the holder of the right has ratified the disposition taken by the unentitled person, the person himself/herself has ratified the unauthorized representation.

Inasmuch as the interests between the parties are similar, Articles 130 and 133 of the Civil Act on the ratification of unauthorized Representation may be inferred to ratification by an unentitled person. Therefore, in cases where a contract was made by an unentitled person, if the right holder ratified it, in principle, when the contract was concluded, the effect of the contract ought to be deemed to be retroactively reverted to the right holder (see Supreme Court Decision 2017Da3499, Jun. 8, 2017). The Defendant paid KRW 250 million from the Plaintiff by exercising C’s claim against the Plaintiff by exercising the right to demand the instant provisional payment against the Plaintiff. It can be deemed that C knowingly agreed that the Defendant owned the said KRW 250,000 to possess the said KRW 250,000 by exercising the right to demand the instant provisional payment claim of the Defendant, who is an act of the unentitled person, and such declaration of intent was legally binding to the Plaintiff through C’s representative director as well as C, who is the unentitled person, and thus, it became effective within the scope of the Plaintiff’s claim of this case’s claim.

○ From 9th to 12th of the first instance judgment, the following changes are made.

Therefore, the defendant is not obliged to pay 20% of the total amount of 347,926,50 won and 20% of the total amount of 10.2% of the total amount of 20% of the total amount of 20% of the total amount of 30.2% of the amount of 20% of the amount of 20% of the amount of 20% of the amount of 20% of the amount of 20% of the amount of 20% of the amount of 30% of the amount of 20% of the amount of 20% of the amount of 20% of the amount of 30% of the amount of 20% of the amount of 20% of the amount of 10% of the amount of 20% of the amount of 20% of the amount of 10% of the amount of 20% of the amount of 30% of the amount of 20% of the amount of 20% of the amount of 3% of the amount of 20.20% of the amount of the amount of damages

2. Conclusion

Therefore, the portion of the credit payment of KRW 347,926,502 to D among the Plaintiff’s claims shall be accepted within the scope of the above recognition on the ground of its reasoning, and the remainder of the claim and the part concerning the withdrawal of KRW 250,000,000 on September 27, 2013 shall be dismissed on the ground of its ground. Of the judgment of the first instance, the remainder, excluding the portion concerning the withdrawal of KRW 300,000,000 on February 28, 2014, shall be dismissed on the ground of its ground. Since it is unreasonable to conclude a different conclusion, the part of the Plaintiff’s appeal was partially accepted, and the part concerning the withdrawal of KRW 300,000,000 among the judgment of the first instance shall be modified as above. It is so decided as per Disposition by the assent of all participating Justices on the bench.