2016Da222729 Return of the purchase price

A

Seoul Guarantee Insurance Co.

Suwon District Court Decision 2015Na18012 Decided May 3, 2016

July 29, 2016

1. Of the lower judgment, the part against the Plaintiff ordering additional payment is reversed.

The defendant shall pay to the plaintiff an amount calculated by the ratio of 15% per annum from May 21, 2015 to May 3, 2016.

2. Of the total litigation costs, 60% is borne by the Plaintiff, and the remainder 40% is borne by the Defendant, respectively.

The grounds of appeal are examined.

The phrase "cases where it is deemed reasonable to dispute whether an obligor exists an obligation or its scope" under Article 3 (2) of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings (hereinafter "the "Litigation Promotion Act") refers to cases where there is a reasonable ground for the obligor's assertion as to the existence of an obligation or the scope of the obligation. Thus, whether such a dispute is inappropriate or not is related to the fact-finding and its evaluation by the court concerning the relevant case (see, e.g., Supreme Court Decisions 94Da56234, Feb. 17, 1995): Provided, That in cases where the appellate court maintained the claim amount cited by the first instance court, barring any special circumstance, it cannot be deemed reasonable for the Defendant to claim the existence or scope of the obligation to perform the above cited amount in the appellate proceedings (see, e.g., Supreme Court Decisions 86Da819, May 12, 1987; 2002Da34581, Sept. 10, 2002).

In light of the above legal principles and records, the court below maintained the amount of award of the Plaintiff’s claim for the return of dividends against the Defendant cited by the court of first instance. In such a case, it cannot be deemed reasonable to dispute as to the existence and scope of the Defendant’s obligation, and no special circumstance exists to view otherwise.

Therefore, with respect to the claim for the return of dividends that the lower court maintained at the first instance judgment, damages for delay shall be added at the rate of 20% per annum as stipulated by the Litigation Promotion Act from May 21, 2015 to the date of full payment, which is the day following the date of the first instance judgment. Nevertheless, the lower court erred by misapprehending the legal doctrine on Article 3 of the Litigation Promotion Act, etc., which affected the conclusion of the judgment by misapprehending the legal doctrine on the performance of the obligation, as to the existence or scope of the obligation, from May 21, 2015 to May 3, 2016, which is the day following the date of the first instance judgment.

The ground of appeal assigning this error is with merit.

Therefore, among the judgment below, the part against the plaintiff as to damages for delay that the defendant should additionally pay to the plaintiff, i.e., "30,105,602 won, i.e., "30,102 won," which is equivalent to the amount calculated by the rate of 15% per annum (20% per annum or 5% per annum) from May 21, 2015, which is the day following the date on which the judgment of the court of first instance was rendered to May 3, 2016, which is the date on which the judgment of the court of first instance is rendered, is reversed, and this part is sufficient for this court to directly render a judgment, and therefore, it is decided pursuant to Article 437 of the Civil Procedure Act to order the defendant to pay the above amount, and the remaining

Justices Kim In-bok

Justices Park Jae-hee in charge

Justices Park Young-young

Justices Kim Jong-il