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1. The Plaintiff:
A. The Defendants jointly share KRW 89,726,127 as well as the aforesaid costs from October 21, 2016 to April 6, 2017.
Reasons
1. Facts of recognition;
A. The Plaintiff is a juristic person established for the purpose of building construction business, etc., and is the owner of Jung-gu Incheon Metropolitan City D and E (hereinafter “instant project site”). Defendant B (hereinafter “Defendant Company”) is a juristic person established for the purpose of building construction business, etc., and Defendant C is the actual operator of Defendant Company.
B. The Plaintiff and the Plaintiff of the Defendant Company entered into a contract with the Defendant Company on March 6, 2014 regarding the instant project as the implementer of the instant project site F new construction project (hereinafter “instant project”), and entered into a real estate development execution contract, PM service contract, and sales agency contract with the Defendant Company on March 6, 2014, and among which, according to Article 6(1) of the “sale agency contract”, the Plaintiff would pay 12% of the gross sales per sales of the goods sold to the Defendant Company on a sales agency fee when the Defendant Company completes sales pursuant to the said sales agency contract.
C. On April 8, 2015, when the instant project was in progress, the Plaintiff filed a complaint with Defendant C on charges of embezzlement. Defendant C was indicted for occupational embezzlement, etc. of the Incheon District Court 2015Kadan6736 and embezzled Plaintiff’s funds from July 15, 2014 to February 23, 2015, and was sentenced to imprisonment with labor for one year and six months on July 21, 2016.
Accordingly, Defendant C appealed, and the appellate court (Seoul District Court 2016No3024) rendered a final judgment on October 20, 2016, on the grounds that “Defendant C returned KRW 39,127,840 at the investigation stage, and deposited KRW 150 million at the appellate court,” etc., the lower judgment was reversed and sentenced to one year, and the final judgment of the Supreme Court became final and conclusive on January 12, 2017.
On October 20, 2016, the Plaintiff received the deposit amount of KRW 150,020,175.
[Ground of recognition] Facts without dispute, Gap Nos. 1-4, 7, 9, 17, 23, 39, 40-43 (including the number of each branch; hereinafter the same shall apply), and arguments.