2019Na2017131 Return of annual withdrawal fees, etc.

A Stock Company

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

1. B

2. C.

3. D;

4. E.

Since it is a minor, the legal representative father B

[Defendant-Appellant] Plaintiff 1 and 5 others (Attorney Lee Jae-ho, Counsel for defendant-appellant)

Seoul Southern District Court Decision 2018Gahap101988 Decided February 14, 2019

September 24, 2019

October 31, 2019:

1. The plaintiff's appeal and the additional selective claims filed by this court are all dismissed.

2. The costs of the lawsuit after the appeal shall be borne by the Plaintiff.

1. Purport of claim

Optionally, Defendant B paid the Plaintiff 113,66,66 won, Defendant C, D, and E paid the amount of KRW 75,77,777 per annum from the day following the delivery date of the copy of the complaint of this case to the day of complete payment. ② From January 30, 2018, Defendant B paid the amount of KRW 195,73,40 per annum from the day of delivery of the copy of the complaint of this case to the day of the delivery of the copy of the application for change of the claim of this case, and KRW 12% per annum from the next day to the day of complete payment (the Plaintiff claimed that the Defendants succeeded to F’s obligation to the Plaintiff, such as annual withdrawal fees, etc., from F’s Plaintiff at the first instance court, the Plaintiff claimed that the Defendants returned the above amount of KRW 30 to GP Co., Ltd. (hereinafter referred to as “Defendant B’s obligation to return”) and KRW 3050 to the Plaintiff’s obligee’s claim for additional repayment damages.

2. Purport of appeal

The part against the plaintiff falling under the order of payment under the judgment of the first instance shall be revoked.

The Plaintiff paid 15% interest per annum to Defendant B, Defendant C, D, and E, each of which was 61,11,11 and 111 won, and each of them, from the day following the day of service of a copy of the complaint of this case to the day of full payment (the Plaintiff claimed at the first instance court that the sum total of KRW 66,00,000,000,000,000,000, which was paid by the Plaintiff to the Defendants to F, and the sum total of KRW 66,00,000,000,000, and the first instance court dismissed the said claim. Accordingly, the Plaintiff appealed only against the rejection of the claim for the refund of the down payment of the down payment. Accordingly, this Court’s judgment on the claim of this Court is limited to the Plaintiff’s claim for the refund of the down payment).

1. Basic facts

A. On February 22, 2016, the Plaintiff entered into an agreement with the F and G (F as a representative director and a single shareholder) for the broadcast drama (hereinafter “instant agreement”). The key contents are as follows.

The term of this contract under Article 2 (Period of Contract) is as follows: The term of this contract shall be until the expiry date of the broadcast of the "Supervision" as at the time when the producer and the supervisor affix their signatures and seals to the contract. The term of the contract under Article 3 (Subject Matter of Contract): HD format, HD format, 20 minutes in total 70 minutes in the session: The amount per 50,000 won per plaintiff: 1. The producer is not the supervisor's duty to suspend the production and supervision of the production of the work under this contract, but the producer's duty to cancel the production and supervision of the work under this contract by 30,000 won in the case of the producer's failure to return the work under this contract: The producer's duty to cancel the production and supervision of the work under this contract by 40,000 won in the case of the producer's failure to do so.

B. The Plaintiff paid KRW 275,00,000 to G account on the day of the contract.

C. F: (a) died on January 13, 2018; (b) the Defendants, the inheritor, reported the renunciation of inheritance on February 27, 2018; and (c) the Seoul Family Court accepted this on May 18, 2018 (2018 Daehan 50620).

[Reasons for Recognition] Unsatisfy, Gap evidence 1 through 10 (if there are provisional numbers, including each number), Eul evidence 1 to 3, the purport of the whole pleadings

2. Summary of the Plaintiff’s selective claims

A. Summary of the plaintiff's claim as to the plaintiff's claim as to the claim for the refund of the down payment

1) As a result of the suspension of drama production due to force majeure, which was the death of F on January 13, 2018, F shall return to the Plaintiff the amount of KRW 275,00,000,000,00 for annual payment. However, as the Defendants inherited F’s obligations due to the death of F, Defendant B, as the spouse of F, is obligated to pay to the Plaintiff the amount of KRW 91,66,666, Defendant C, D, and E, 2/9 for each of F’s children, and the amount of KRW 61,111,111, and each of these delay damages.

2) Meanwhile, on February 7, 2018, Defendant B, after the death of F and before the Defendants’ renunciation of inheritance, disposed of No. 1 of the H Building (hereinafter “instant officetel”) on one’s own account holder, Yeongdeungpo-gu Seoul Metropolitan Government, and two parcels of H Building (hereinafter “instant officetel”).

3) However, the instant officetel is an inherited property held in title by F, and its disposal act constitutes a legal simple approval ground as stipulated under Article 1026 Subparag. 11 of the Civil Act.

B. Summary of the Plaintiff’s assertion as to the obligee’s subrogation claim against Defendant B

1) Since the production of drama was suspended due to force majeure, such as the death of F on January 13, 2018, G must return to the Plaintiff the down payment of KRW 275,000,000.

2) However, since G is insolvent, there is a need to preserve the Plaintiff’s right to claim the return of the refund of the Plaintiff’s refund fees against G.

3) From June 8, 2016 to January 3, 2018, G transferred the recipient amounting to KRW 195,733,400 in a foreign country on six occasions, and G processed the money paid to P as a domestic payment fee. However, since P did not provide a service corresponding to the payment fee received from G, it is obligated to return the fee to G, and the amount is KRW 195,73,400.

4) In addition, considering the following circumstances, P is deemed to have been used as a means of merely taking the form of a legal entity, but merely taking the form of a legal entity, and in substance, it is reasonable to deem that P was used as a means to go against Defendant B’s private company behind the legal entity’s corporate personality or to avoid applying the law to Defendant B.

A) G was a company for which the F was a representative director and a single shareholder.

B) In order to divide the G’s tax settlement statement, a false standard income statement was prepared as if a fee was paid in Korea, even though a fee was paid to a foreign corporation.

C) There is no evidence that P has performed external services in relation to G’s work.

D) P was established two months prior to the receipt of an overseas remittance from G, and the F was dead and thus the F could no longer receive an overseas remittance, the P was liquidated immediately.

E) As “R”, P’s CEO is identical to Defendant B’s English name. The location of its head office is the same as that of the Defendants’ domicile in the U.S., and Defendant B’s signature and the signature written by Defendant B’s proxy (Evidence B No. 11) are the same as that of the Defendants’ domicile in the State Office of California.

5) Accordingly, Defendant B is obligated to return money transferred from G to a foreign account in the name of P to the Plaintiff.

3. Relevant laws, legal principles, etc.

(a) The proprietary property owned by one side of the married couple prior to marriage, and the property acquired in his own name during the marriage, shall be the peculiar property (Article 830(1) of the Civil Act);

B. Under Article 830(1) of the Civil Act, real estate acquired by one spouse in the name of his/her own name during marriage is presumed to be the unique property of the nominal owner. Therefore, in order to reverse such presumption, the other spouse must prove that the other spouse actually assumed the consideration for the relevant real estate and acquired it in order to possess it in substance. In this case, the mere fact that the other spouse is the source of the purchase fund does not necessarily mean that there was a title trust on the relevant real estate, and it does not mean that there was a title trust on the said real estate. In full view of all the circumstances revealed through the relevant evidence, whether the other spouse has borne the consideration for the real possession of the relevant real estate by taking into account all the circumstances revealed by the relevant evidence, it is difficult to deem that a title trust existed solely on the ground that the other spouse is the source of the purchase fund (see, e.g., Supreme Court Decision 2013Da49572, Oct. 31, 2013).

C. Where a company has the external form of a legal entity but it merely takes the form of a legal entity and actually takes it merely to a private company of a person behind the legal entity or to use it without permission for the purpose of avoiding the application of laws against the person behind the legal entity, denying the responsibility of the person behind the legal entity by asserting that even if the act of the legal entity is an externally separate personality of the company, the legal effect of the act belongs only to the company and the person behind the legal entity, cannot be permitted against justice and equity as an abuse of the legal entity in violation of the principle of trust and good faith. Therefore, if it appears that the company is only an individual company behind the legal entity, as a matter of principle, the company shall be held liable for the act of the company against the person behind the legal entity, as well as the person behind the legal entity. Whether the act of the person behind the legal entity is beyond the scope of the company’s legal entity and its status should be determined by comprehensively taking into account the degree of the abuse of its legal entity and its status, such as whether it would be difficult to distinguish its property and business among the person behind the legal entity.

4. Determination

A. Determination as to the plaintiff's claim for the return of the payment fee against the defendants

1) According to the overall purport of Gap evidence Nos. 12 through 16, Eul evidence No. 4 and all pleadings, the following facts can be acknowledged.

A) On October 7, 1998, the F completed the registration of transfer of ownership on the ground of sale as of September 1, 1998 with respect to Yongsan-dong S apartment T, Yongsan-gu, Yongsan-gu, Yongsan-gu, Yongsan-gu, Seoul on September 1, 1998, but completed the registration of transfer of ownership on the ground of sale as of January 18, 2002 to U on March 15, 2002.

B) On March 15, 2002, the F completed the registration of ownership transfer on the grounds of sale on February 15, 2002 with respect to Yongsan-gu V apartment W on March 15, 2002. However, the F completed the registration of ownership transfer on the grounds of sale on December 29, 2010 to X andY on November 18, 2010 (transaction value of KRW 978,000,000).

C) On March 28, 2011, the F and Defendant B completed the registration of ownership transfer on the ground of sale on the ground of the purchase and sale (transaction price of KRW 1,395,000,000) of the building Nos. 1/2 on February 28, 201 (transaction price of KRW 1,395,00,000) in Gangnam-gu Seoul and one parcel of land, M, and Defendant B, but completed the registration of ownership transfer on the ground of sale on April 30, 201 (transaction price of KRW 1,195,00,000) to the Z on June 25, 2013. Meanwhile, F made the registration of ownership transfer on the said real estate with the mortgagee AA and debtor F as the maximum debt amount of KRW 360,00,000,000,000 each of the registration of establishment of a mortgage.

D) On October 1, 2015, Defendant B completed the registration of ownership transfer on the ground of sale on September 15, 2015 (transaction price of KRW 184,000,000) with respect to the instant officetel, Defendant B completed the registration of ownership transfer on the ground of sale on September 15, 2015, but completed the registration of ownership transfer on the ground of sale on February 7, 2018 and L on January 26, 2017.

E) On October 30, 2015, Defendant B completed the registration of ownership transfer on the ground of sale (transaction price of KRW 850,000,000) as to AC apartment units outside Seocho-gu Seoul, Seocho-gu, and one parcel AD on October 2, 2015.

2) As above, in light of the content of Article 830(1) of the Civil Act and the legal principles on title trust between the husband and wife as seen earlier, the evidence submitted by the Plaintiff up to this court and the circumstances of its assertion alone, it is difficult to recognize the instant officetel as an inherited property trusted in trust from F to Defendant B.

3) Therefore, we cannot accept the Plaintiff’s assertion that Defendant B’s disposal of the instant officetel constitutes the legal ground for simple approval.

4) The Plaintiff’s assertion on this part of the claim is without merit to examine other issues.

B. Determination on the Plaintiff’s subrogation claim against Defendant B

1) The purport of Article 12 of the instant contract provides that “Where the manufacture of the Rama is revoked or suspended due to force majeure, etc., G bears the obligation to refund its overdue fee according to the degree of its performance of duties.” The Plaintiff paid KRW 275,00,000 to G account on the day of the instant contract, and the fact that F died on January 13, 2018, etc. is as seen earlier, and there is no dispute between the parties as to the fact that G is insolvent at present.

2) However, the evidence presented by the Plaintiff to this court alone is insufficient to recognize that P bears the duty to return KRW 195,733,400 to G, and there is no other evidence to acknowledge it.

3) In addition, in light of the legal principles as seen earlier regarding the theory of corporate personality, even if the evidence submitted by the Plaintiff to this court as to the theory of corporate personality in P, and the circumstances of the aforementioned assertion, it is difficult to recognize that P merely takes the form of a corporation and actually used as a means to avoid applying the law to Defendant B.

4) Therefore, the Plaintiff’s assertion on the ground of this part of the claim is without merit, which is based on the premise that P bears the obligation to return KRW 195,733,400 to G, and Defendant B bears the responsibility for the above obligation.

5. Conclusion

Therefore, all of the Plaintiff’s claim in this case must be dismissed. The judgment of the court of first instance which dismissed the Plaintiff’s claim for the return of the down payment to the Defendants is just in conclusion. Thus, the Plaintiff’s appeal is dismissed as it is without merit, and the Plaintiff’s claim for subrogation against Defendant B selected by this court is dismissed as well as the obligee’s claim for subrogation against Defendant B is also without merit. It is so decided as per Disposition. (Around October 18, 2019, the Plaintiff filed an application for the resumption of argument with the purport that “the scope of return of the up payment claim and the resumption of argument is necessary to clarify the existence of the subrogated claim to clarify clearly after the closing of argument in this Court.” However, in light of the various circumstances as seen earlier, it is not appropriate to resume the pleading for the same reason as the Plaintiff’s aforementioned assertion, and thus, the Plaintiff’s application for resumption of argument cannot be accepted).

Justices Kim Jong-chul

Judges Kim Yong- For

Judges Notarial Do;

(i) Article 1026 (Absolute Acceptance by Law)

In the following cases, a successor shall be deemed to have granted simple approval:

1. Where an inheritor performs a disposal act on inherited property;