2011Na63088 Return of deposit

A person shall be appointed.

1. The dedicated unit;

Representative ○○○○

2.

[Defendant-Appellant] Plaintiff 1 and 1 other

Seoul Eastern District Court Decision 2010Gahap19592 Decided July 13, 201

June 1, 2012

June 27, 2012

1.The judgment of the first instance shall be modified as follows:

A. The Defendants: (a) each of the Plaintiff KRW 309, 520, 00; and (b) the Defendant from November 29, 2004 to the Defendant.

by July 13, 2011, Defendant 2, 201, 5% per annum until June 27, 2012, and 5% from each following day to each of them.

The payment of 20% interest per annum from the date of full payment shall be made.

B. The plaintiff's remaining claims against the defendants are dismissed.

2. The total costs of the lawsuit shall be borne by the Defendants.

3. Paragraph 1-A(a) may be provisionally executed.

1. Purport of claim

The Defendants jointly and severally against the Plaintiff KRW 309, 520, 000, and the instant case from November 28, 2004

5% per annum and 20% per annum from the following day to the date of complete payment of the complaint;

H. H. H. H.D.

2. Purport of appeal

A. The plaintiff 1:

Of the judgment of the court of first instance, the part concerning the Defendant dedicated to the lower court is revoked. The Defendant Appellee is the Plaintiff.

309, 520, 000 won per annum from November 29, 2004 to July 13, 201, and the following day;

J. D. 20% interest per annum from the date of full payment to the date of full payment.

B. Defendant Ah

In the judgment of the first instance court against the defendant, the part against the defendant shall be revoked, and the plaintiff's claim corresponding to the revocation

The dismissal is dismissed.

1. Basic facts

The court's explanation about this part of the judgment of the court of first instance is the same as that of the judgment of the court of first instance.

Therefore, it is accepted by the main text of Article 420 of the Civil Procedure Act.

2. Parties’ assertion

A. The plaintiff's assertion

The defendants shall pay 309, 520, 000 won jointly and severally upon the following claims:

shall be liable.

( 1 ) 원고는 2004 . 7 . 30 . ◆◆◆를 통하여 피고들에게 300 , 000 , 000원을 대여 또는

As such, the Defendants made an investment, as the borrower of the above 300,000,000 won, or as the investor of the investment and the return

The duty to pay KRW 309,520,000 equivalent to the sale price of the real estate of this case under the exchange agreement

(hereinafter referred to as "claim for Return of Loans or Investment Proceeds").

(2) The party who borrowed or invested KRW 300,000,000 from the Plaintiff on July 30, 2004

는 피고들이 아니라 ◆◆◆라고 하더라도 , 피고 ○○은 개인 및 피고 ◎◎◎의 표현

대표이사의 지위에서 ◆◆◆의 위 차용금반환채무 또는 투자금 및 수익금반환채무를

As such, the Defendants are obliged to pay the guaranteed debt (hereinafter referred to as the “guaranteed debt”).

Claim for Payment (hereinafter referred to as "claim for Payment").

(3) Defendant lawsuit prepared the instant sales contract and delivered it to the Plaintiff on July 30, 2004

로써 , 피고들은 ◆◆◆의 위 차용금반환채무 또는 투자금 및 수익금반환채무에 대하여

Water guarantee by providing the plaintiff with the right to claim ownership transfer registration of the instant real estate

In this case, each ownership of the instant real property in the name of the Korea Investment Trust, the Defendant dedicated to the dedicated to the Dogsung.

Since a previous registration has been completed and the performance of the right to claim the transfer of ownership is impossible, the Defendants are the defendants.

shall be liable for damages equivalent to 309, 520, 000 won due to the non-performance of the water guarantee contract.

(hereinafter referred to as the "claim for Damage resulting from Non-performance of the Water Guarantee Contract").

(4) The Defendants’ ownership of the instant real estate at the time of offering the instant sales contract as security.

이전등기를 하여 줄 의사가 없었음에도 불구하고 , ◆◆◆가 위 차용금반환채무 또는

In the event that investment funds and the obligation to return profits are not fulfilled, transfer of ownership, etc. of the real estate of this case

기를 하여 줄 것처럼 원고를 속여 원고가 ◆◆◆에게 위와 같이 300 , 000 , 000원을 지급

As such, the Defendants are obligated to pay damages equivalent to KRW 309, 520,00 for the sale price.

C. (hereinafter referred to as "claim for Damages caused by deception")

B. The defendants' assertion

( 1 ) 원고는 ◆◆◆에게 300 , 000 , 000원을 투자 또는 대여한 것이고 , 피고들은 ◆◆◆

there is no guarantee for the above borrowed money, or for the investment and the obligation to return the proceeds.

( 2 ) 피고 ○○은 , ■■■와 ◆◆◆가 △△△의 분양대행업을 하고 싶다고 하여 분

양대행보증금을 요구하였으며 , ■■■와 ◆◆◆가 원고로부터 돈을 대여 또는 투자받

H. The sales contract of this case was issued for the purpose of the nature of the sales agency.

뿐이고 , 피고 이 경영하는 ▲▲▲가 위 분양대행의 수수료로 1 , 228 , 514 , 957원을

위 ◆◆◆ 등에게 지급하였으므로 , 원고는 ◆◆◆ 등으로부터 피고 이 지급한

be paid with its own loans or investment funds from the above fees, and shall be paid with funds to the defendants

subsection (1) of this section.

3. Determination

A. Determination as to the return of loans or investment earnings

The court's explanation about this part of the judgment of the court of first instance is the same as that of the judgment of the court of first instance.

Therefore, it is accepted by the main text of Article 420 of the Civil Procedure Act.

B. Determination as to a claim for payment of guaranteed debt

(1) Whether the defendant's lawsuit is guaranteed or not

Gap evidence No. 9, Eul evidence No. 1, Eul evidence No. 9, and Eul evidence No. 10

payment of KRW 285,00,000 for the Plaintiff’s payment of KRW 285,00 as a whole under the following circumstances:

여 2008년경 ◆◆◆ , ■■■ , 피고 ○○을 이 사건과 동일한 사실관계로 사기 혐의

로 고소한 사건의 수사과정에서 피고 ○○은 " 이 사건 분양계약서는 주채무자인 ◆

◆◆ 등이 원고로부터 차용한 돈을 갚지 못하는 경우 그 담보의 의미로 작성하여 준

것이고 , 보증인으로서의 책임은 있다고 생각한다 " 고 진술한 점 , ② ◆◆◆는 원고로부

ter 285,00,000 won from the time when the contract was entered into to be invested, to the Plaintiff, “the above investment”

As pro ratas, it shall be secured and sold as goods equivalent to at least 450, 000, and 000 won of Yongsan-gu's ▽▽▽△△ as goods.

Defendant ○ entered into an agreement to deliver a written completion contract, etc. on the same day.

the sale price of 309, 520, 000 won is fully paid by the sale price in the number of buyers.

건 분양계약서를 위 투자금에 대한 담보용으로 원고에게 교부하였는데 , ◆◆◆가 피고

reading the sales contract of this case stating the purport of the full payment of the sale price without prior agreement with the division

Defendant ○○ in light of the circumstances such as it is difficult to see that he had voluntarily thought, etc. of this case

분양계약서를 작성하여 원고에게 교부함으로써 ◆◆◆의 원고에 대한 이 사건 약정금

It guarantees the amount equivalent to the sale price stated in the contract for sale in this case among obligations.

I seem to be.

(2) Defendant 1 et al.

director's act of using a name that is recognized as having authority to represent the corporation;

the corporation, even if the director does not have the authority to represent the corporation, the corporation is acting in good faith.

(Article 395 of the Commercial Act) The name of the representative director who is arbitrarily expressed by a person who is not qualified as a director.

With knowledge that the company has been used, the company has not taken any measure but failed to do so.

Article 395 of the Commercial Act shall apply mutatis mutandis to cases where they are passively silent (Supreme Court Decision 9 September 9, 2005).

204Da17702 decided Feb. 2, 2004

Note A, Evidence A, Evidence 15, Evidence A, 17, 18, 19, and Evidence A 1, respectively.

및 당심 증인 ▼▼▼의 증언에 변론 전체의 취지를 종합하여 인정되는 다음의 각 사

Defendant 1, i.e., ① Defendant ○○, on April 2, 2002, assumed office as a director and representative director of the dedicated deposit.

In the position, he resigned on June 27, 2003, and again on February 23, 2007, he was appointed as a director or a representative director.

(2) The real estate in this case is the real estate in this case under the sales contract of this case

The seller is the defendant dedicated dedicated unit and deliver the contract to the plaintiff of this case.

On July 30, 2004, under the direction of the defendant's lawsuit, the sales price and payment method of the sales contract of this case

on July 30, 2004, the part in which the content was written by the Defendant 1, the employee of the dedicated unit, stating that “the full payment” was made on July 30, 2004.

Then, Defendant 1 affixed the corporate seal of the “representative director of the dedicated unit” and Defendant 3 Defendant 1

이 사건 분양계약서를 교부한 2004 . 7 . 30 . ◆◆◆ , ■■■ , 원고가 ' 이 사건 분양계약

300,000,000 won received as security, and simultaneously with the repayment of the above amount

The contract for the sale of a unit shall be prepared with the statement that "to be immediately refunded to the defendant dedicated to the dedicated to the unit."

delivery to the defendant ○○, and in the case of the receiver at the bottom of the above commitment, the representative of the dedicated unit shall be

H. H. H. H. H. H. H. H. The sales contract of this case is entered into with the Defendant

부할 당시 피고 ◎◎◎의 등기부상 대표이사는 ▼▼▼이었지만 , 피고 소은 피고

(1) The name of the dedicated property shall be entered as the representative director in the corporate register as the dedicated property owner and actual owner

corporation, as well as the time when it was not stated as the representative director on the registry; and

업무처리과정에서 중요한 사항을 위 ▼▼▼과의 협의 없이 독자적으로 결정하였으며 ,

The sales contract of this case was made according to the independent decision of Defendant ○○ and Defendant O.

소의 위와 같은 독자적 결정은 위 ▼▼▼의 묵인하에 이루어졌던 것인 점 등의 사정

을 종합하면 , ① 피고 ◎◎◎의 등기부상 대표이사인 ▼▼▼은 피고 이 위와 같

이 피고 ◎◎◎의 대표이사로 행세하여 ◆◆◆의 원고에 대한 투자금 및 수익금반환채

Until now regarding the preparation and delivery of the instant sales contract to the Plaintiff for guarantee

It seems that the contract for the sale of this case was timely permitted to the plaintiff, and the contract for the sale of this case was written

성 · 교부하는 방법으로 ◆◆◆의 원고에 대한 이 사건 약정금채무를 보증한 행위는 상

Since the act of expression representative director as stipulated in Article 395 of the Act is deemed to be an act of expression representative director, the defendant dedicated to the

(2) In full view of the above circumstances, Defendant 1 was liable to the Defendant, and the lower court’s claim

에게 위와 같은 내용의 이 사건 분양계약서를 작성 · 교부하는 방법으로 ◆◆◆의

the Plaintiff granted the authority to act as an agent for the act of guaranteeing the obligation of the instant contract amount to the Plaintiff (1)

Since it is reasonable to see that the defendant dedicated to the dedicated to the defendant's act of acting as the defendant is the principal.

shall be borne.

Therefore, Defendant 2’s above guarantee against Defendant 2’s expressed representative director or representative

행위에 따라 원고에게 ◆◆◆의 원고에 대한 이 사건 약정금 채무 중 이 사건 분양계

309, 520, 000 won, and damages for delay, which are the amount equivalent to the sale price under the pledge;

(2) the Corporation.

C. Determination as to the defendants' assertion

(1) Plaintiff’s assertion of gross negligence

The Defendants in the instant sales contract “The proceeds relating to this contract shall be subject to (State) Korea’s land.

It shall be deposited in the account of a financial institution designated by the trust, and where it is paid by other means.

In the case of this case with the defendant 202 dedicated to the defendant 202 dedicated to the statement that "the effect is not recognized

Although there is bad faith or gross negligence in the process of concluding a guarantee contract, the sales contract of this case

Defendant ○○○, even if the above contents were stated, by itself,

in the belief that the △△△△ is not entitled to represent the △△△△△, or that there is such authority;

The Defendants cannot be deemed to have been negligent, and there is no other evidence to acknowledge the Defendants’ above assertion;

The defendants' assertion in this part is without merit.

(2) The plaintiff's defense of discharge of obligation or waiver of claim

피고들은 , 원고가 투자기간 말일 이후에도 ◆◆◆에 대한 채권추심을 하지 않았고 ,

원고와 ◆◆◆가 함께 피고 을 사기로 고소하였던 점 등을 살펴보면 , 원고가 ◆

◆◆의 채무를 면제하여 주거나 청구를 포기한 바 있는 것이므로 , 보증채무의 부종성

Accordingly, Defendant ○○ asserts that the guaranteed obligation of Defendant ○○ upon the Plaintiff was naturally extinguished.

그러나 설령 원고가 ◆◆◆에 대한 채권추심을 하지 않았고 , 원고와 ◆◆◆가 피

고 을 사기로 고소하였다고 하더라도 이 점만으로 원고가 ◆◆◆의 원고에 대한

채무를 면제하여 주었거나 , ◆◆◆에 대한 채권을 포기하였다고 보기는 어렵고 , 달리

Since there is no evidence to prove the above assertion by the Defendants, this part of the defendants' assertion is also justified.

(2).

(3) Conditional contract defenses

Even if the Defendants are liable to guarantee the Plaintiff, the Plaintiff and the Defendants

보증계약은 피고 이 경영하는 ▲▲▲ 가 ◆◆◆ , ■■■ 에게 △△△의 분양대행

수수료를 지급하면 , ◆◆◆ , ■■■가 원고에게 투자금을 변제하고 분양계약서를 회수

I argue that it is a conditional contract with the condition attached.

그러나 피고들이 위 항변의 근거로 제시하는 을 제2호증 ( 확약서 ) 의 기재는 ' ◆◆◆

로부터 원고가 300 , 000 , 000원을 받음과 동시에 원고 , ◆◆◆ , ■■■는 피고 000의

The sales contract of this case must be returned to Defendant ○, the representative director, to Defendant ○.

Therefore, the statement of Eul evidence No. 2 alone is that the guarantee contract between the plaintiff and the defendants is asserted by the defendants.

No such conditional contract shall be deemed as a conditional contract, and otherwise evidence to acknowledge the Defendants’ claims.

Therefore, this part of the defendants' assertion is without merit.

(4) Peremptory, search and any defense of neglect

피고들은 ① 원고는 주채무자인 ◆◆◆에게 먼저 청구 및 집행하여야 하고 ( 최고 ·

검색의 항변 ) , ② 현재 위 ◆◆◆에게 변제자력이 없다 하더라도 , 원고의 ◆◆◆에 대

한 이 사건 약정금 채권의 변제기가 도과할 무렵에는 ◆◆◆에게 이 사건 계약에 따른

Since there is sufficient financial capability to repay the debt to the plaintiff, the plaintiff at the above time.

The Plaintiff is liable to the Plaintiff who neglected the claim and enforcement of the claim(s)

The guarantor shall have the ability to pay back to the principal debtor, in respect of the defense of the highest and highest search.

The highest and search defenses can be made by proving that the facts and the execution thereof are easy.

( 민법 제437조 ) , 을 제5호증의 1 , 2 , 을 제7호증의 각 기재만으로는 주채무자인 ◆◆◆

It is not sufficient to acknowledge the facts of the ability to repay and the fact of easy execution to do so to the public.

Since there is no evidence to prove the Defendants, this part of the defendants' defense is without merit.

Next, in regard to the defenses of failure to conduct the highest and search, the defenses of the guarantor's highest and search.

(1) If a creditor fails to obtain full or partial performance from the debtor due to his/her neglect;

not neglected by the creditor, the guarantor shall have the obligation to the extent that such obligation had not been received.

and (Article 438 of the Civil Code) The time when the guarantor is to be the basis for the failure of the creditor, and the time when the guarantor is to make the highest search.

의 항변권을 행사한 때이고 주채무의 이행기가 아닌바 , 위 ◆◆◆에게 변제자력이 있

at the time of easy execution, the defendants exercised their right to defense of highest and search.

Inasmuch as there is no evidence consistent with this, this part of the defendants' defense is without merit.

(5) Extinctive prescription defense

피고들은 , 원고의 피고들에 대한 채권은 상인인 분양대행업자 ◆◆◆의 분양대행

As a claim arising from commercial activities such as business, etc. and subject to the five-year commercial prescription period, the Defendant

들의 보증채무는 시효기간의 경과로 소멸하였고 , 또한 원고가 주채무자로 상인인 ◆◆

◆에 대하여도 위 투자기간의 말일 이후로 상사시효기간인 5년이 지나기 전에 주채무

Since the principal obligation was extinguished by prescription because it did not have claimed the performance thereof, the Defendants’ guaranteed obligation also became extinct.

It also asserts that the extinction has been extinguished.

1.5 285, 000, 000 won after the Plaintiff prepared an investment and a reimbursement agreement, as seen earlier.

을 지급한 상대방으로 이 사건 약정금채무의 주채무자는 ◆◆◆인데 , ◆◆◆가 상인이

on the premise that there is no evidence consistent with the purport of this section, and on the premise that their obligations are extinguished.

시효의 적용을 받는 것이라는 피고들의 위 주장은 이유 없고 , 설령 ◆◆◆가 상인이어

서 상사소멸시효가 적용되는 것이라고 하더라도 갑 제16호증의 기재에 의하면 ◆◆◆

after November 28, 2004, the due date for the payment of the agreed amount to the plaintiff, the period of time for the payment of the obligation to the plaintiff, shall not be later than the due date for the completion of the prescription.

On November 28, 2008, by granting to the Plaintiff a written agreement on repayment of the said invested money and approving the Plaintiff’s debt.

The interruption of prescription has been suspended, and the interruption of prescription against the principal obligor shall also be effective as against the surety.

After November 28, 2008, the extinctive prescription period of five years has not elapsed since the lawsuit of this case.

Since it is evident that the defendants filed on November 8, 2010, it was clearly recorded, the above assertion by the defendants is without merit.

D. Sub-committee

그렇다면 피고들은 각자3 ) 원고에게 ◆◆◆의 원고에 대한 이 사건 약정금 채무 중

From November 29, 2004, 309, 520,000 won and the following day after the due date for the payment of the above agreed amount

the defendant's action that is deemed reasonable to dispute the existence and scope of the obligation.

Until July 13, 2011, which is the date the judgment of the court of first instance is rendered, in the case of the defendant, and the judgment of the court of first instance in the case of the defendant dedicated to the dedicated to the defendant

5% per annum prescribed by the Civil Act until June 27, 2012, an ancient day, and a lawsuit from the following day to the day of full payment.

The obligation to pay damages for delay calculated at the rate of 20% per annum under the Act on Special Cases concerning Promotion, etc.

(2) the Corporation.

4. Conclusion

Thus, the plaintiff's claim of this case against the defendants is justified within the scope of the above recognition.

The remainder of the claim shall be accepted, and shall be dismissed, and the plaintiff's defendant in the judgment of the court of first instance shall be dismissed.

The Plaintiff’s appeal is unfair on the ground that the part relating to the claim against the dedicated claim is inconsistent with this conclusion.

The judgment of the first instance court is partially accepted and it is decided as per the Disposition.

Judge Lee Dong-ju

Judges Fixed Limit Line

Judges Lao Young-young

A person shall be appointed.

1) The Plaintiff’s assertion of the claim for return of the above loan or investment profit or the claim for payment of guaranteed debt is eventually made and delivered in the sales contract of this case.

It seems that there is also an argument to hold the party responsible as a party.

2 ) 을 제1호증의 기재에 의하면 ◆◆◆가 원고에게 작성해 준 투자 및 상환약정서 ( 을 제1호증 ) 의 투자기간은 2004 . 7 . 29 . 부터

2004 . 11 . 28 . 까지로 , 그렇다면 ◆◆◆의 원고에 대한 이 사건 약정금채무의 변제기는 2004 . 11 . 28 . 로 봄이 상당하다 .

3) Where two or more persons jointly guarantee the same principal obligation, the company

Therefore, in principle, there is a separate interest, but when based on the evidence and fact as seen earlier, the plaintiff of the sales contract of this case is based on the plaintiff of this case.

에게 이 사건 약정금채무에 대한 담보로 제공함에 있어 원고와 피고들 사이에서는 ◆◆◆가 이 사건 약정금채무의 변제를

If it is not possible, it shall be deemed that the Defendant ○ or Defendant 1 shall be responsible for the entire agreed amount obligations.

It is reasonable to see that there was an agreement with it.