Plaintiff (Attorney Jeon Young-jin et al., Counsel for the plaintiff-appellant)

G&L Co., Ltd. (Attorney Park Jong-soo et al., Counsel for the plaintiff-appellant)

April 29, 2016

1. The defendant shall pay to the plaintiff 124,728,127 won with 5% interest per annum from September 12, 2015 to June 3, 2016, and 15% interest per annum from the next day to the day of complete payment.

2. The plaintiff's remaining claims are dismissed.

3. 3/4 of the costs of lawsuit shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

4. Paragraph 1 can be provisionally executed.

The defendant shall pay to the plaintiff 461,962,206 won with 5% interest per annum from September 12, 2015 to the service date of the application for amendment of the claim, and 15% interest per annum from the next day to the day of complete payment.

1. Facts of recognition;

A. On August 12, 2010, Nonparty 1 received a successful bid of KRW 86,450,000 for corporeal movables listed in the separate sheet (hereinafter “instant movables”) owned by the Defendant at the auction procedure for corporeal movables (No. 2010No. 581), and Nonparty 3 purchased the instant movables from Nonparty 1 on August 14, 2010 for KRW 140,000,000, and Nonparty 4 purchased the instant movables from Nonparty 3 on December 1, 2011.

B. On March 20, 2012, Nonparty 4 filed a civil lawsuit against the Defendant against the Jeju District Court 201Kadan22183, demanding the delivery of the instant movable property, and was sentenced to a judgment of the same court on March 20, 2012 that “the Defendant shall deliver the corporeal movable property recorded in the separate sheet to Nonparty 4,” and the said judgment became final and conclusive on December 20, 2012.

C. On July 24, 2014, Nonparty 4 filed an application for inspection of the instant movable with the Jeju District Court. Nonparty 5 inspected the instant movable on August 8, 2014 by Jeju District Court 2012No387. Of the instant movable, part of the instant movable was dismantled and stored in the warehouse, or the whereabouts of Nonparty 4 was unknown, and the result is as shown below 1.

본문내 포함된 표 별지순번 품목 규격 수량 비고 5 슬롯머신(의자포함) 12조(주1) 소재불명 6 룰렛테이블(의자,모니터등 부속장비 일체) 1조 해체되어 창고에 보관 8 블랙잭테이블(의자,모니터등 부속장비 일체) 3조 해체되어 관리동에 보관 9 다이사이테이블(의자,모니터등 부속장비 일체) 1조 해체되어 창고에 보관 14 공기청정기 8대 소재불명 15 게임메이커(의자포함) 4대 소재불명 22 콘솔 1대 소재불명 23 락커 10대 소재불명 24 1인용쇼파 10대 창고에 보관 25 타원형테이블 2대 물건불분명 26 사각테이블 5대 물건불분명 28 TV 대우29인치 1대 소재불명 30 사각콘솔 1대 소재불명

Note 1) Article 12

D. On August 7, 2013, the Plaintiff concluded a contract with Nonparty 4 to acquire the instant movable property (hereinafter “instant transfer contract”) and received the instant movable property by transfer. Nonparty 4 notified that “the instant movable property was transferred to the Plaintiff” on November 6, 2014, and the said notification of transfer reached Nonparty 6’s representative director on November 7, 2014. In addition, Nonparty 4 notified the instant transfer on April 23, 2015, which was the date of filing the instant lawsuit, to the effect that the said notification was delivered to the Defendant’s representative director. The said notification of transfer reached the Defendant’s representative director on April 24, 2015.

E. On January 13, 2015, the Defendant handed over the instant movable property to Nonparty 4 at the casino site of ○○○○○ 2, located in Jeju-si ( Address 2 omitted). On September 11, 2015, the Defendant handed over the instant movable property, among the instant movable property, as indicated in the following table 3, to the Plaintiff.

Article 27:5 India and Article 22 of the attached table No. 16, 16, 10, 40 4 of TV LN40 and 6 of the attached table No. 16, 7 TV (including 4 of personal chairs, glass, etc.) which refuses to accept the attached table No. 1, 17, 5, 22 shall be 2 response sets (4-2 of human shock shocks: 1, 1, 1, 1, 3 of TV LN40 and 4 of TV LN40 (including 1, 4, freeboards), 16, 100 16, 7 TV (including 1, 4, 500) which refuses to accept the attached table No. 634, 11, 7, GROEN 4, 12, 4, 13, 4, 5, 16, 17, 17, 17, 19

본문내 포함된 표 별지순번 품목 규격 수량 비고 1 바카라테이블(의자,모니터등 부속장비 일체) 27조 22조 인도 4 원탁(1인용의자 4개, 유리포함) 16조 10조 인도 6 룰렛테이블(의자,모니터등 부속장비 일체) 1조 해체되어 창고에 보관되어 있음 8 블랙잭테이블(의자,모니터등 부속장비 일체) 3조 해체되어 창고에 보관되어 있음 9 다이사이테이블(의자,모니터등 부속장비 일체) 1조 해체되어 창고에 보관되어 있음 20 영상모니터(모니터 28, 녹화장비 4조, 키보드 3개 등 부속장비 일체) 1조 모니터 5대는 소재불명 21 모니터용 컴퓨터(부속장비 일체) 5조 22 콘솔 1대 23 락커 10대 6대 인도, 4대는 소재불명 24 1인용쇼파 6대 4대 인도, 2대는 소재불명 26 사각테이블 5대 1대 인도, 4대는 소재불명 27 1인용의자 10대 30 사각콘솔 1대

F. On the other hand, on May 14, 2015, after the filing of the instant lawsuit, Nonparty 4 entered into an agreement between the Plaintiff and Nonparty 4 to transfer all the claims for compensation and restitution of unjust enrichment, etc. owed by Nonparty 4 against the Defendant to the Plaintiff. On November 26, 2015, Nonparty 4 notified the Defendant of the assignment of the said claim and sent the notification to the Defendant at that time.

G. From among the instant movables, the TV set forth in No. 10 and No. 29 of the Attached List No. 10 were occupied and used by the Defendant until August 8, 2014, but the materials thereafter were unknown.

[Reasons for Recognition] Facts without dispute, Gap evidence Nos. 1, 2, 12, 13, 14, 15, 17 (including each number in the case of evidence Nos. 12, 13, and 14), Eul evidence Nos. 2-1, 3-1, and the purport of the whole pleadings

2. The plaintiff's assertion

A. Of the instant movables, with respect to the movables that the Defendant possessed and used until January 13, 2015 and September 11, 2015, the Defendant gains a considerable amount of profit from the Defendant’s possession and use without legitimate authority, and Nonparty 4, the owner of the instant movables, and the Plaintiff suffered a loss equivalent to the same amount.

B. Meanwhile, the Defendant is liable to compensate the Plaintiff or Nonparty 4, who was the owner of the instant movable property, for damages equivalent to the market price as the tort, in respect of the movable property that was damaged or destroyed by the Defendant’s possession or use and was not delivered to the Plaintiff or Nonparty 4.

C. By August 6, 2013, the Defendant is liable to Nonparty 4, who was the owner of the instant movable property, and from August 7, 2013, the Plaintiff, the owner of the instant movable property, is liable to pay the amount equivalent to each usage fee and damages, respectively, to the Plaintiff, who is the owner of the instant movable property. The Plaintiff was transferred to Nonparty 4’s claim for return of unjust enrichment and

D. Therefore, the Defendant is liable to return KRW 304,977,206, which is the amount equivalent to the rent for the movable property delivered on January 13, 2015 and September 11, 2015 (from December 1, 2011 to September 11, 2015) to the Plaintiff as unjust enrichment, and to pay KRW 156,985,00, which is the amount equivalent to the market price of the movable property not delivered, to the Plaintiff.

3. Determination

A. Determination as to whether the Defendant is liable for damages

The Plaintiff’s movable properties listed in the separate sheet Nos. 5, 23, 24, 25, 26, 28, and 29 among the corporeal movable properties listed in the separate sheet were occupied by the Defendant and their whereabouts cannot be known. As such, the Defendant asserts that the amount equivalent to the market price as of September 11, 2015 should be returned to the Plaintiff as compensation for damages, and as long as the Plaintiff’s assertion and proof against the Defendant’s tort were not presented, the Plaintiff’s claim for this portion is without merit, without any need to further examine

B. Determination as to whether the Defendant’s obligation to return unjust enrichment arises

1) The instant movable property was owned by Nonparty 4 from December 1, 201 to August 7, 201, and was transferred to the Plaintiff on and from August 7, 2013, and was owned by the Plaintiff. Nonparty 4 transferred to the Plaintiff all rights, such as the right to claim restitution of unjust enrichment and the right to claim compensation against the Defendant regarding the instant movable property on May 14, 2015, which was after the instant lawsuit was filed. The Defendant notified the Defendant of the assignment of the said movable property. The Defendant occupied and used part of the instant movable property, and delivered it to the Plaintiff and Nonparty 4, as seen earlier. As seen below, the Defendant gains profit equivalent to the usage fee by occupying and using the movable property, and the Defendant sustained damages equivalent to the same amount to the Plaintiff and Nonparty 4, which are the owner of the said movable property, and the Defendant is obligated to return unjust enrichment to the Plaintiff.

2) Determination as to movables not occupied or used by the Defendant

A) As to movables Nos. 6, 8, 9, and 24 of the [Attachment List]

In the return of unjust enrichment on the ground that the benefit has been realized without any legal ground, since it refers to the substantial benefit, if the defendant occupied the movable property of this case, but did not gain substantial benefit due to the failure to use or make profit, it does not constitute a obligation to return unjust enrichment even if the loss was incurred to the plaintiff (see Supreme Court Decision 98Da8554 delivered on July 10, 1998, etc.).

According to the purport of Gap evidence No. 2 and the whole arguments, the movable property Nos. 6, 8, 9, and 24, among the movable property of this case as indicated in the separate sheet, was dismantled before August 8, 2014 and stored in the inner warehouse inside the place of business. Thus, although the defendant occupied the above movable property, it cannot be deemed that the defendant gained substantial benefits, and there is no other evidence to acknowledge this otherwise, the plaintiff's claim for this part of the movable property of this case is without merit.

B) As to movables Nos. 5, 14, 15, 22, 23, 25, 26, 28, and 30 of the [Attachment List]

As seen earlier, the movables Nos. 5, 14, 15, 22, 23, 25, 26, 28, and 30 of the [Attachment List] are movables, the location of which is unknown at the time of August 8, 2014, or the Plaintiff’s ownership is unclear. As such, the fact that the Defendant delivered some of the movables (attached Table Nos 22, 23, 26, 30) to the Plaintiff on September 11, 2015 is insufficient to recognize the fact that the Defendant acquired profits by occupying and using the aforementioned unknown movables from December 1, 2011, and there is no other evidence to acknowledge it (or cannot be known at the time of August 8, 2014). Therefore, this part of the Plaintiff’s claim is without merit.

3) Determination as to movables possessed and used by the Defendant

A) As to movables Nos. 10 and 29 of the [Attachment List]

According to the overall purport of evidence Nos. 2, 10, and 3-1 of evidence Nos. 3 and the entire arguments, the movable property Nos. 10, 29 of the annexed list Nos. 10 and 29 was occupied and used in the place of business on August 8, 2014, but it can be recognized that the location of the movable was unknown on January 13, 2015. Thus, the Defendant obtained substantial benefits by using the movable property as at least until August 8, 2014.

B) As to movables Nos. 1, 4, 20, 21, and 27 of the Schedule Nos. 1, 4, 20

According to the overall purport of evidence Nos. 2, 15, and 3-1 of evidence Nos. 3-1, the defendant occupied and used movable property Nos. 1, 4, 20, 21, and 27 in the defendant's business place until January 13, 2015, and the defendant suspended possession and use of the above movable property and delivered the above movable property to Nonparty 4 on the same day. However, Nonparty 4 refused to accept movable property Nos. 10, 20, 21, and 27 among movable property No. 1 of the attached Table No. 22, No. 4 of the attached Table No. 1, respectively, for reasons such as "the movable property is different from the object of delivery", or "the defendant is not located in the defendant's business place," and the plaintiff may recognize that he/she received all the above movable property which Nonparty 4 refused to accept on September 11, 2015. Therefore, the defendant is obligated to return the amount equivalent to the above movable property acquired by occupation and use.

C) As to movables Nos. 2, 3, 7, 11, 12, 13, 16, 17, 18, and 19 of the Schedule Nos. 2, 7, 11, 19

As seen earlier, the aforementioned movables were occupied and used by the Defendant in the place of business, video room, and computer room, and delivered them to Nonparty 4 on January 13, 2015. As such, the Defendant is obligated to return the amount equivalent to the profit accrued from the possession and use of the said movables until January 13, 2015.

4) On this ground, the Defendant kept the movable property of this case for Nonparty 4, and there is a claim equivalent to the storage fees against Nonparty 4, and there is a defense that offsets the Plaintiff’s claim to return unjust enrichment against the Defendant’s claim to return unjust enrichment. Thus, unless there is no specific assertion and proof as to the Defendant’s claim equivalent to the storage fees, this part of the Defendant’s defense is without merit to further examine.

C. Determination on the scope of return of unjust enrichment

Furthermore, with respect to the amount of unjust enrichment to be returned to the Defendant, the amount of profit from the possession and use of ordinary movable property is equivalent to the usage fees of movable property. According to the appraiser non-party 7's appraisal result and the purport of the whole pleadings, the user fees for each period of movable property occupied and used by the Defendant are as specified in the table 4 and table 5 below. Thus, the Defendant is obligated to pay to the Plaintiff the amount of unjust enrichment, 508,415 won, and delay damages.

본문내 포함된 표 별지순번 품목 2011.12.1.~2012.11.30. 2012.12.1.~2013.11.30. 2013.12.1.~2014.11.30. 2014.12.1.~2015.1.13. 합계 ×18% ×18% ×18% ×18% ×44/365(주2) 1 바카라테이블(의자,모니터등 부속장비 일체) 121,500,000 109,350,000 98,415,000 88,560,000 61,189,331 21,870,000 19,683,000 17,714,700 1,921,631 2 응접세트(4인용쇼파:1,1인용쇼파:2) 500,000 450,000 400,000 360,000 250,811 90,000 81,000 72,000 7,811 3 벽걸이TV 2,400,000 2,160,000 1,950,000 1,740,000 1,209,555 432,000 388,800 351,000 37,755 4 원탁(1인용의자 4개, 유리포함) 6,400,000 5,760,000 5,120,000 4,640,000 3,211,081 1,152,000 1,036,800 921,600 100,681 7 TV(벽거치대 포함) 4,000,000 3,600,000 3,240,000 2,920,000 2,014,560 720,000 648,000 583,200 63,360 11 제빙기 1,200,000 1,080,000 960,000 864,000 601,947 216,000 194,400 172,800 18,747 12 낮은냉장고 600,000 540,000 480,000 432,000 300,973 108,000 97,200 86,400 9,373 13 스테인레스싱크대 1,600,000 1,440,000 1,280,000 1,152,000 802,596 288,000 259,200 230,400 24,996 16 커피메이커 600,000 540,000 480,000 432,000 300,973 108,000 97,200 86,400 9,373 17,18,19 테이블메인보드, 테이블backbone, 웹서버 99,500,000 88,750,000 79,000,000 70,500,000 49,634,753 17,910,000 15,975,000 14,220,000 1,529,753 20 영상모니터장비(모니터28,녹화장비4조,키보드3개 등 부속장비일체) 8,000,000 7,200,000 6,500,000 5,850,000 4,032,936 1,440,000 1,296,000 1,170,000 126,936 21 모니터용 컴퓨터(부속장비 일체) 1,000,000 900,000 900,000 720,000 519,623 180,000 162,000 162,000 15,623 27 1인용 의자 300,000 270,000 240,000 220,000 150,573 54,000 48,600 43,200 4,773 총합 124,219,712

Note 2) 】 44/365

Attached Table Nos. 1 to December 1, 2012, 201, from November 30, 2012 to November 30, 2012, from December 1, 2012 to November 30, 2013, to December 1, 2013, 2013.1 to November 30, 2013 x 18% x 18% x 251/365 (State 3) x 150,00 gram 135,000 x 1,000 x 1,000 x 1,000 x 1,00,000 x 29 0,000 0,0040, 2628, 2018, 2008 x 1506,500 x 16,005 x 106

Note 3) x 251/365

D. Sub-committee

Therefore, as the Defendant seeks from September 12, 2015 to the Plaintiff, the Defendant is obligated to pay 5% per annum under the Civil Act from September 12, 2015 to June 3, 2016, and 15% per annum under the Act on Special Cases concerning Expedition, etc. of Legal Proceedings from the next day to the date of full payment.

4. Conclusion

Therefore, the plaintiff's claim is accepted within the scope of the above recognition, and the remaining claims are dismissed as it is without merit. It is so decided as per Disposition.

[Attachment]

Judges Dok-Ba (Presiding Judge)

1) According to the statement No. 12-2 of the evidence A, it can be confirmed that the quantity of No. 5 slot machines (including chairs) among the movables listed in the attached Table No. 12-2 is not 16 but 12.

Note 2) Since the basic price of movable property ¡¿ 18% is the real rent for one year, a formula for calculating the usage fee for 44 days from December 1, 2014 to January 13, 2015.

Note 3) Since the basic price of movable property ¡¿ 18% is the real rent for one year, the formula for calculating the usage fee for 251 days from December 1, 2013 to August 8, 2014.