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(영문) 대법원 2019. 10. 31. 선고 2019다247651 판결
[대여금][공2019하,2202]
Main Issues

In a simultaneous performance relationship between both parties, whether the obligor is not liable for the delay of performance until the other party’s performance is offered (affirmative) / In a case where the obligor of a monetary claim provides security to the obligee, whether the obligor’s obligation for repayment and the obligee’s obligation for repayment of security are in a simultaneous performance relationship (negative in principle); and in such a case, whether the obligor is liable for the delay of performance even before the obligee returns security (affirmative in principle)

Summary of Judgment

Where both parties have simultaneously performed their obligations, even if the due date for performance of one of the parties has arrived, they shall not be held liable for the delay of performance even if they fail to perform their obligations until the other party has provided their obligations.

Where an obligor of a monetary claim provides a security to a creditor, barring any special circumstance, the obligee is merely a person who has received the obligation from the obligor and returns the security after having received all the obligation from the obligor, and cannot be deemed as having a simultaneous performance relationship. Therefore, even before the obligee returns the security provided by the obligor, barring any special circumstance, the obligor shall be liable for delay of the performance.

[Reference Provisions]

Article 536 of the Civil Act

Reference Cases

Supreme Court Decision 69Da1173 Decided September 30, 1969 (No. 17-3, 158), Supreme Court Decision 84Meu781 Decided September 11, 1984 (Gong1984, 1645), Supreme Court Decision 97Da54604, 54611 Decided March 13, 1998 (Gong1998Sang, 1042)

Plaintiff-Appellee

[Judgment of the court below]

Defendant-Appellant

Ham Chang Co., Ltd. (Attorney Cho Sung-sung et al., Counsel for the defendant-appellant)

Judgment of the lower court

Suwon District Court Decision 2018Na83000 decided June 18, 2019

Text

The appeal is dismissed. The costs of appeal are assessed against the defendant.

Reasons

The grounds of appeal are examined.

1. As to the misapprehension of legal principles as to the admission of confession, the exercise of the right to know, the incomplete hearing, etc. (ground of appeal Nos. 1 and 2)

A. For the following reasons, the lower court rejected the Plaintiff’s assertion on the return of the investment deposit, and rejected the Defendant’s assertion as to the repayment defense.

(1) On October 20, 201, the Plaintiff agreed to invest 200,000 million won in the E-Do Global Certified architect office (hereinafter “E-Do”) and 200,000 won each month from January 201 to December 2017. Thereafter, the Defendant that merged Doz is obligated to return investment KRW 200,000,000 to the Plaintiff pursuant to the above agreement. However, the extinctive prescription for KRW 28,00,000 arising before October 20, 2012, among the Plaintiff’s claim for the return of investment deposit, the Defendant’s investment deposit to be returned to the Plaintiff is KRW 172,00,000,000,000.

(2) The Defendant asserts that E.C. returned KRW 100 million out of the investment amount to the Plaintiff. The Nonparty, the representative director of E.C., was aware of the abuse of power of representation, and thus, the Plaintiff was also aware of such abuse of power of representation, thus an investment agreement is null and void. If the Defendant lost in the instant lawsuit, the Plaintiff is liable to compensate the Defendant for damages under Article 401 of the Commercial Act, and thus, the Defendant’s damage claim offsets the Defendant’s damage claim against the Plaintiff’s

However, there is a lack of evidence to deem that DoC paid KRW 100 million to the Plaintiff, or that the Nonparty made an investment agreement by abusing its power of representation, and that the Plaintiff was aware of such circumstances. Therefore, it is difficult to deem that liability for damages under Article 401 of the Commercial Act is established, and it cannot be offset against future claims with automatic claims. Therefore, all of the above arguments cannot be accepted.

B. Examining the reasoning of the lower judgment in light of the record, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on deemed confession, etc., contrary to what is alleged in the grounds of appeal.

2. misunderstanding of legal principles as to the establishment of liability for delay of performance (Ground of appeal No. 3)

A. The lower court determined that the Defendant is obligated to pay KRW 172 million and damages for delay, on the premise that the Plaintiff held shares listed in the attached list of the lower judgment as a security for the claim for return of investment deposit, on the premise that the Defendant’s obligation to return the investment deposit and the Plaintiff’s obligation to return the Plaintiff’s shares were in simultaneous performance relationship.

B. Where both parties have simultaneous performance relations, even if the fulfillment period for one party's obligation arrives, the other party shall not be liable for delay of performance until the other party's obligation is performed (see Supreme Court Decision 97Da54604, 54611, Mar. 13, 1998, etc.).

Where an obligor of a monetary claim provides a security to a creditor, barring any special circumstance, the obligee can only return the security after having received all the obligation from the obligor, and cannot be deemed as having a simultaneous performance relationship with the obligor’s obligation to repay and the obligee’s obligation to return the security (see, e.g., Supreme Court Decisions 69Da1173, Sept. 30, 1969; 84Meu781, Sept. 11, 1984). Therefore, the obligor is liable for delay of performance, barring any special circumstance, even before the obligee returns the security provided by the obligor.

C. Examining the reasoning of the lower judgment in light of the foregoing legal doctrine, the following conclusion can be derived.

If the Defendant’s obligation to return the investment deposit and the Plaintiff’s obligation to return the share are concurrently performed, the Defendant is not liable for delay in the obligation to return the investment deposit, unless the Plaintiff provided the obligation to return the investment deposit. However, even if the Plaintiff held shares as security for the obligation to return the investment deposit, the Plaintiff is merely liable to return shares after all having received the investment deposit from the Defendant, and both obligations are not deemed to be in the simultaneous performance relationship. Therefore, even before receiving the said share, the Defendant is liable for delay in the obligation to return the investment deposit

D. The lower court should have rendered a judgment of simple performance, and accepted the defendant's simultaneous performance and ordered the return of investment money in return for the return and redemption of the Plaintiff's shares is erroneous in the misapprehension of the legal doctrine regarding the establishment of simultaneous performance relationship. However, in this case where only the Defendant appealed, the lower court cannot render a judgment of simple performance disadvantageous to the Defendant in accordance with the principle of prohibition of disadvantageous change, and thus, has no choice but to maintain the lower judgment as it is. Furthermore, the lower court's conclusion that recognized the defendant's obligation to delay performance is justifiable, and thus, it cannot

3. Conclusion

The Defendant’s appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Dong-won (Presiding Justice)

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