2014Na21268 Agreements, etc.

A

Gyeongsan-si

Attorney Kim Jong-soo, Counsel for the plaintiff-appellant

1.B

Pohang-si

C Representative Director

Attorney Kim Jong-ju, Counsel for the plaintiff-appellant

2.D

East Sea-Si

Attorney Lee Lee-soo, Counsel for the plaintiff-appellant

Legal representative of a lawsuit, an attorney-at-law in charge of support for legal representative

Daegu District Court Decision 2013Gahap204564 Decided May 22, 2014

April 29, 2015

May 27, 2015

1. The part against Defendant D in the judgment of the first instance is revoked.

2. Defendant D shall pay to the Plaintiff 170,00 U.S. dollars and 20% interest per annum from October 5, 2013 to the day of full payment.

3. The plaintiff's appeal against the defendant B is dismissed.

4. The costs of appeal between the Plaintiff and the Defendant D are borne by the said Defendant. The costs of appeal between the Plaintiff and the Defendant are borne by the Plaintiff.

5. Paragraph 2 can be provisionally executed.

The judgment of the first instance is revoked. The Defendants jointly pay to the Plaintiff the amount calculated by applying the ratio of 20% per annum from the day following the day of delivery of a copy of the complaint of this case to the day of full payment (the Plaintiff is liable to compensate for damages due to nonperformance, and the conjunctive damages due to tort).

1. Basic facts

A. From November 14, 2010, Defendant B (hereinafter referred to as “Defendant B”) operating a professional axis in Korea entered the Plaintiff into USD 850,000 (including KRW 5% of the FIFA mutual aid fund) from E (hereinafter referred to as “E”) as a broker of Defendant D, a transfer agent in the stable, in order to leave the Plaintiff for the transfer fee of USD 850,000 (including KRW 5% of the FIFA mutual aid fund).

B. On November 19, 2010, E agreed to pay USD 200,000 among the above interest rates that Defendant B would receive from Defendant B in return for the transfer of interest. On July 20, 2011, E agreed to pay USD 170,000 with the Plaintiff at USD 1,70,000 (each of the evidence Nos. 1, No. 2-1, No. 2-2). In addition, on November 22, 2010, E agreed to pay USD 158,00 among the above interest rates that Defendant D would receive from Defendant B as a brokerage fee (Evidence No. 1).

C. Around January 24, 2011, Defendant B paid USD 600,00 (including USD 30,000,000) for the primary interest rate of KRW 500,00 (including USD 50,000,000) to E, but thereafter, there was a dispute between the Plaintiff and E in relation to the payment of the interest rate, the payment of the remainder of the interest rate of USD 250,00 ($ 850,00,000 - USD 6,000,000 and KRW 12,50,000,000 is included in USD 5,000,000, and there was an agreement to pay by June 30, 201 (Evidence 3).

D. Defendant D received from E on July 19, 201 only USD 30,000 among the brokerage commission of USD 158,000,00 from E, and received the provisional attachment order on the claim of USD 128,000 among the interest rate claim of USD 250,000 against Defendant B (Seoul District Court Decision 201Kadan3140, No. 5, No. 20140, No. 201, No. 5), and the provisional attachment order on the above claim was served on Defendant B, a third debtor at that time (hereinafter “the provisional attachment”).

E. Accordingly, on September 20, 201, Defendant B sent an e-mail reply to Defendant D to the purport that “I would like to find a solution to USD 2.50,000, which was provisionally seized,” and on the same day, it would be desirable for Defendant B to pay to each party the agreed amount in consultation with Defendant D (Evidence 8) and consult with the Plaintiff (mainly, the Plaintiff’s H was in charge of negotiations) (Evidence 9).

F. On April 26, 2012, the Plaintiff and Defendant B, except for USD 12,500,000,000 (FIFA’s mutual aid) from April 26, 2012, KRW 237,500,00.

A person shall be appointed.

F. On April 26, 2012, the Plaintiff and Defendant B agreed that USD 250,000 (excluding USD 12,500,000 among the mutual aid funds of FIFA) would be subject to the signature of E and Defendant D (No. 37,500,000).

G. On May 2012, the Plaintiff sent to E and Defendant D the e-mail attached with a copy of the above 2 signature agreement signed by the Plaintiff and Defendant B, and received the e-mail attached thereto, along with the content that the Plaintiff consented to the second signature agreement from August 2, 2012 and that Defendant D discussed this objection, together with the signature of the Plaintiff and Defendant B (hereinafter referred to as “the third party signature agreement”). (Nos. 14 and 17-3).

H. On October 10, 2012, the Plaintiff sent the e-mail accompanied by a copy of the above third party’s signature agreement to Defendant D, and on November 15, 2012, the Plaintiff received from Defendant D the e-mail attached with the agreement signed by Defendant D on the third party’s signature (hereinafter “the above fourth party’s signature agreement”). At the time, Defendant D sent the above e-mail not only to the Plaintiff but also to the Defendant B (Article 6-1, 2, 3, 7, and 6-1, 6-2).

I. Accordingly, on November 15, 2012, the Plaintiff sent a text message to Defendant D about the progress of the withdrawal of the provisional attachment of this case, and Defendant D sent a text message to the Plaintiff on the same day, stating that “The process of the withdrawal of the provisional attachment of this case was delayed by the Korean court. The Defendant B knew that the provisional attachment of this case was withdrawn. As the Plaintiff was aware that the provisional attachment of this case was withdrawn, the Plaintiff asked Defendant B “whether the Plaintiff was prepared to pay the money prior to the conclusion of the court.”

(j) However, on December 21, 2012, Defendant D received a favorable judgment in a lawsuit claiming USD 128,000 against E (Seoul Central District Court 2012Gahap36215, Eul 1,200), and on August 8, 2013, upon receipt of a provisional seizure and a collection order (Seoul Central District Court 2013 TaT22903, Eul's evidence 1, Eul's evidence 1, 3 Eul's evidence 1, and 164,404,286 ($ 250,000,000,0000, and damages for delay for collection) from the above USD 250,000 on September 10, 2013

[Ground of recognition] Evidence Nos. 1 through 17 (including paper numbers; hereinafter the same shall apply), Eul evidence Nos. 1, 1, 2, 3, and 6

Each description, the purport of the entire pleading

2. Claim against Defendant D

A. Determination on the cause of the claim

On November 15, 2012, Defendant D: (a) drafted an agreement with the Plaintiff, E, and the Defendants on the fourth signature of the above four persons; and (b) sent the photographic file to the Plaintiff and Defendant B, the first master; (c) the Plaintiff did not receive the transfer fee agreed upon by E; (d) Defendant D already received part of the transfer fee agreed upon by E; and (e) Defendant D was unable to receive the transfer fee agreed upon by E on November 15, 2012, and the provisional attachment of this case, the agreement was concluded with the Plaintiff, E, and the Defendants on November 15, 2012. The content of the agreement was ① withdrawn the provisional attachment of this case on the claim of USD 250,000,00,000,000,000,0000,0000,0000,0000,0000,0000,000,000,000,000.

However, Defendant D received an order of seizure and collection, which transferred the provisional seizure of this case to the provisional seizure without complying with the above agreement, and collected the money equivalent to USD 128,000,000 among USD 2.50,000, thereby causing damage not to receive USD 170,00 from Defendant B.

Therefore, unless there are other special circumstances, Defendant D is obligated to pay USD 170,00 and damages for delay incurred by the Plaintiff due to the nonperformance of the above agreement, and thus, Defendant D is obligated to pay the Plaintiff USD 170,00 and damages for delay.

B. Determination on Defendant D’s assertion

1) Defendant D’s assertion

Defendant D withdrawn the instant provisional attachment on condition that USD 50,00 was received in advance from the Plaintiff, and received USD 30,000 from Defendant B. The instant four signature agreement is merely a presentation of the sample of the agreement to be prepared and made to the Plaintiff upon the fulfillment of the said condition. Even if not, the condition that “the instant four signature agreement included in the instant four signature agreement was not fulfilled,” and thus, Defendant D’s obligation did not have yet occurred.

2) Determination:

First of all, we examine the argument that the defendant D's prior payment of USD 50,00 from the plaintiff that the above 4th signature agreement was prepared or that the above 4th signature agreement was merely a sample, and it is difficult to believe that some of the statements in Eul or 5,7 evidence were merely a text message or a statement stating the unilateral argument of the defendant D, and it is not sufficient to recognize the above assertion only by the descriptions in Eul 1, 2, 3, and 6 evidence, and there is no other evidence to acknowledge this. Thus, the above assertion by the defendant D is without merit.

In addition, in light of the fact that the condition of the withdrawal of the provisional attachment of this case has not yet been fulfilled, it is reasonable to view that the plaintiff agreed on the condition that "the defendant D will withdraw the provisional attachment of this case under the above 4th signature agreement, and that the obligation to withdraw the provisional attachment of this case cannot be a condition to withdraw the provisional attachment of this case." The parties to the above 4th signature agreement shall withdraw the provisional attachment of this case, and the rights and obligations of the other parties except the defendant D shall withdraw the provisional attachment of this case on the premise of this," and that "the defendant D shall withdraw the provisional attachment of this case." In addition, it is reasonable to view that the plaintiff agreed on the condition that "the defendant D will withdraw the provisional attachment of this case, i.e. the rights of the defendant D, the claim of USD 30,000 against the defendant B, the defendant D shall withdraw the provisional attachment of this case." Thus, the above assertion of the defendant D's above is without merit.

C. Sub-decision

Therefore, Defendant D is obligated to pay to the Plaintiff the amount calculated at the rate of 20% per annum from October 5, 2013 to the day following the delivery date of a copy of the complaint of this case sought by the Plaintiff as a result of the date of the occurrence of the damage, to the day of full payment. As seen above, insofar as the Plaintiff’s damages for nonperformance of the obligation, which is the primary assertion against Defendant D, are recognized, it shall not be further determined on the tort compensation for the conjunctive assertion.

3. Claim against the defendant B

A. The parties' assertion

1) The plaintiff's assertion

A) On July 201, Defendant B agreed to pay USD 170,000 to the Plaintiff, upon receipt of the Plaintiff’s promise that “the Plaintiff would have paid USD 1.7 million out of USD 250,000 from E” (hereinafter “original direct payment agreement”). Accordingly, Defendant B was obligated to pay USD 170,00 to the Plaintiff under the direct payment agreement of the Plaintiff’s assertion.

B) However, Defendant B is obligated to pay USD 170,00 to the Plaintiff according to the above 4-party signature agreement. Defendant B is merely limited to the period of withdrawal of the provisional seizure of this case, which is contained in the above 4-party signature agreement, and even if it falls under the conditions, Defendant D interfered with the fulfillment of the conditions against the good faith and good faith, and thus, the conditions have been fulfilled. Nevertheless, Defendant B is obliged to pay USD 170,00 to the Plaintiff due to Defendant D’s payment of USD 128,00 to Defendant D in violation of the above 4-party signature agreement. As such, Defendant B was unable to receive USD 170,00,000 due to nonperformance or tort.

C) Defendant B is obligated to pay the remainder to Defendant D according to the instant provisional attachment out of the remaining transfer fees to be paid to E at least, to the Plaintiff.

2) Defendant B’s assertion

Defendant B did not enter into an agreement for direct payment of the Plaintiff’s assertion against the Plaintiff around July 201, and did not have reached an agreement for the signature of the said 4-party. Even if the agreement for the signature of the said 4-party was concluded, since the condition of “Withdrawal of the provisional attachment of this case” was not fulfilled, Defendant B’s obligation to pay money was not yet accrued, and there was no ground for the payment of the remaining interest remaining after the payment to Defendant D, and thus, the Plaintiff’s assertion is without merit.

B. Determination

1) The plaintiff's assertion of direct non-performance agreement

Defendant B, around July 201, signed the agreement with the above 2nd signatory that "after signing the agreement on direct payment of the Plaintiff's assertion to the Plaintiff, it is insufficient to acknowledge the agreement only with the entries in the evidence Nos. 1 through 17, and there is no other evidence to acknowledge it. Even if Defendant B, even if it is assumed that Defendant B had agreed on direct payment of the Plaintiff's assertion that the Plaintiff and Defendant B would become invalid, the Plaintiff and the Defendants, the Defendants, and E signed the agreement with the above 2nd signatory that "after signing the agreement on direct payment of the Plaintiff's assertion to the Plaintiff, the agreement on direct payment of the Plaintiff's assertion to the Plaintiff was invalid," and therefore, the agreement on direct payment of the Plaintiff's assertion to the Plaintiff was invalid.

Although the plaintiff's above assertion was made by the plaintiff to the effect that he received the transfer of the claim for the transfer of the claim against the defendant Eul from the plaintiff Eul, the transfer of the nominative claim cannot be set up against the debtor without notifying the transferor to the debtor or obtaining the debtor's consent (Article 450 (1) of the Civil Act). The evidence submitted by the plaintiff alone is insufficient to recognize that "E notified the transfer of the claim to the defendant Eul or that the defendant accepted the transfer of claim," and it is not sufficient to accept the plaintiff's above assertion without any other evidence to acknowledge it.

2) Whether the above 4th party’s signature agreement has occurred

As seen earlier, the signature agreement between the Plaintiff, the Defendants, and E is valid. However, the above 4-party signature agreement provides that “Defendant B shall pay the following money within 30 days from the date of receipt of the withdrawal of the provisional seizure of this case requested by Defendant D” as stated above.

According to the above facts of recognition, Defendant B’s obligation to pay USD 170,00 to the Plaintiff arises only when the condition of suspension is met, “where Defendant D takes the provisional attachment of this case” (the Plaintiff’s assertion that the provisional attachment of this case is nothing more than the condition of taking the provisional attachment of this case is not accepted), and since there is no dispute between the parties that the condition of suspension has not been fulfilled, Defendant B’s obligation to pay USD 170,00 to the Plaintiff was not yet created. Thus, Defendant B’s assertion has merit, and the Plaintiff’s assertion has no merit.

As to this, the Plaintiff alleged that Defendant D interfered with the fulfillment of the condition of suspension against the good faith and good faith, and thus, the condition should be deemed fulfilled. However, even if Defendant D did not withdraw the provisional seizure of this case, the Plaintiff’s assertion is not acceptable, since Defendant D did not have any obligation to suffer disadvantage due to Defendant D’s act, not the act of himself.

3) Claim for the remaining interest payment obligation

The plaintiff asserts that the defendant B should pay all the remaining amounts of the remainder after the provisional attachment of this case to the defendant D. However, the defendant B had no obligation to pay the interest to the plaintiff even according to the above 4-party signature agreement, as seen earlier, and there is no assertion or proof that the plaintiff has the right to claim the interest fee directly against the defendant B. Thus, the plaintiff's assertion is without merit.

4. Conclusion

Thus, the plaintiff's claim against the defendant D is accepted on the ground of its reason, and all of the plaintiff's claim against the defendant Eul shall be dismissed on the ground of its ground. Since the part against the defendant D among the judgment of the court of first instance is unfair on the ground of its conclusion, the plaintiff's appeal is accepted, and the part against the defendant D among the judgment of first instance is revoked, and the part against the defendant D is ordered to pay the money claimed by the plaintiff against the defendant. Since the part against the defendant B among the judgment of the court of first instance is legitimate, the plaintiff's appeal against it is dismissed

Article 5 (Presiding Judge)

Freeboard Kim

The grandchildren Hospital; and