2013 Gohap 11205 Agreements, etc.

A

S.S.C.

October 14, 2014

November 6, 2014

1. On May 27, 2009, the Plaintiff’s promise of borrowing and repayment against the Defendant, and June 5, 2009, the notary public confirmed that the debt based on the No. 109 of the No. 109 of the No. 16,157,535 of the money loan agreement and the debt based on the No. 109 of the money loan agreement does not exist in excess of the annual interest rate of 6% from July 25, 2012 to the date of full payment.

2. All remaining claims of the Plaintiff are dismissed.

3. Of the litigation costs, 80% is borne by the Plaintiff, and the remainder 20% is borne by the Defendant, respectively.

1. The defendant 206,112,387 won to the plaintiff and the plaintiff

(a) Of them 18,053,695 won, 5% per annum from August 23, 2011 to the rendering of the instant judgment; 20% per annum from the following day to the day of full payment;

B. Of them, 5% per annum for KRW 3,058,692 from 2012, 8, and 1. to 20% per annum for the sentencing of this case, and 20% per annum for the following day to the day of full payment.

C. Of them, 50,000,000 won: (a) 5% per annum from June 6, 2009 to the rendering of the instant judgment; (b) 20% per annum from the next day to the day of full payment; and

(d) 135,00,000 won shall be paid with 25% interest per annum from June 8, 2012 to the date of full payment.

2. On May 27, 2009, the Plaintiff’s promise of borrowing and repayment against the Defendant, and June 5, 2009, the notary public confirmed that there was no obligation based on the authentic deed of a monetary loan loan agreement (No. 109) No. 1009 on June 5, 2009.

1. Basic facts

A. The relationship between the parties

The plaintiff is the actual manager of the corporation B(hereinafter referred to as "B"), and the defendant is the party who entered into a sales contract for each of the real estate listed in the separate sheet No. 1 (hereinafter referred to as "each of the real estate of this case") and each of the incidental facilities listed in the separate sheet No. 2 as seen in the following items:

B. Conclusion and implementation process of a sales contract between the Defendant and B

1) As between September 9, 2008 and B, the Defendant entered into a sales contract with B to purchase each of the instant real estate and each of the attached table Nos. 2 from B in the price of KRW 1,750,000 (excluding value-added tax) (hereinafter “instant sales contract”). The specific content of the instant sales contract is as follows.

부동산 및 부대시설 매매계약서(갑 제1호증의 1)1. 매매부동산 및 부대시설의 표시(생략)2. 매매금액 : 일십칠억오천만원(1,750,000,000원) (VAT 별도) 참조기재3. 매매금액의 지급방법 : B이 소유하고 있던 상기 부동산과 부대시설에 가압류 및 근저당권설정이 되어있는 하기의 부채를 피고가 대위변제 및 상환하는 것으로 위 매매대금을 지급한 것으로 한다.4. 매매부동산 및 부대시설의 부채내역 :(1) 근저당권자 주식회사 대구은행(170111-0000141)대구 수성구 수성동2가 118일십오억일천일백팔십칠만칠천원정(1,511,877,000원)2006. 5. 9, 제10819호(2) 가압류 채권자 C대구 달서구 D 101-1303일억일천칠백삼십육만칠천칠백사십원정(117,367,740원)2007. 2. 5. 대구지방법원의 가압류결정 (07카단2271)2007. 2. 6. 제 3822호(3) 가압류 채권자 우리캐피탈 주식회사 (변경전 : 우리주택할부금융 주식회사)대구 남구 대명동 784-6 대우빌딩 5층일억일천오백팔십삼만구천육백구십오원정 (115,839,695원)2008. 8. 18. 대구지방법원의 가압류결정(2008카단 10482)2008. 8. 18. 제20200호(4) 가압류 채권자 가드너덴버코리아 주식회사성남시 중원구 상대원동 517-13 중앙인더스피아 501호, 502호, 503호사백칠십오만육천만원정(4,756,000원)2008. 6. 3. 수원지방법원의 가압류결정 (2008 카단 2998)2008. 6. 4. 제12783호5. 상기의 부동산 및 부대시설의 매매계약에 있어서 B은 피고로부터 상기의 채무를 대위변제 받는 것으로 매매대금의 지급을 받는 것으로 하며 피고는 B의 상기부채를 B을 대신하여 대위변제함으로써위 부동산 및 부대시설을 매수하는 것으로 한다.6. 피고는 B으로부터 위 부동산과 부대시설을 매수한 후 B에게 무상으로 일정부분의 공장과 사무동1층을 2년간 사용하도록 한다. 단 전기료 및 제세공과금은 사용자 부담으로 한다.7. B과 피고의 본 매매계약은, 피고가 매매부동산 및 부대시설의 부채내역 중 2, 3. 4.항을 대위변제하는 조건으로 B으로부터 매매부대시설 중 3. 4. 5. 6. 7.항을 매수하는 것으로서, 추후 피고가대위변제한 매매부동산 및 부대시설의 부채내역 중 2, 3. 4.항을 B으로부터 변제받았을 경우 매매부대시설 중 3. 4. 5. 6. 7.항은 B에게 반환하는 것으로 한다.8. 피고는 상호간 위 매매계약의 조건들을 충분히 이해하고 이에 동의를 함으로써 본 매매계약에 서명날인을 하여 본 매매계약의 성립을 완성한다.[참조 : VAT 기재]기계 매매부대시설의 표시 중 3, 4, 5, 6, 7.항 공급가액 : 90,287,000원, 세액 : 9,028,700원건물 매매부동산의 표시 중 2항 공급가액 : 981,073,000원, 세액 : 98,107,300원토지 매매부동산의 표시 중 1항 공급가액 : 678,640,000원

2) The registration of each provisional seizure and the registration of establishment of a mortgage regarding each of the instant real estates, which was entered or established at the time of the instant sales contract, are as follows.

A person shall be appointed.

3) The Defendant completed each registration of ownership transfer on September 11, 2008 on the instant real estate based on the instant sales contract.

4) On October 8, 2008, according to the instant sales contract, the Defendant subrogated for KRW 2,864,000 to the Adddden Korea Co., Ltd., and on October 17, 2008, the registration of provisional seizure in the name of the Ddumden Korea Co., Ltd. (No. 3 of the above table) was cancelled.

5) On November 27, 2008, the Defendant and B drafted a confirmation document with respect to the implementation of the sales price under the instant sales contract (hereinafter “instant confirmation document”) as follows:

확인서(갑 제1호증의2)1. B과 피고간 체결된 경상북도 칠곡군 F 부동산 및 부대시설 매매계약에 의한 우리캐피탈 가압류건에 대하여 피고는 2008.11. 말일까지 해결하도록 한다.2. 위 부동산의 가압류건 중 C에 해당하는 것은 B 사장 원고와 협의하여 진행 해결하도록 한다.3. 위 부동산의 가압류 건 중 칠백육십일만원(₩7,610,000)에 해당하는 것은 2008. 11. 말일까지피고가 해결하도록 한다.4. 위 부동산 가압류 건이 모두 해결될 시 피고는 지체 없이 대구은행 왜관지점에 근저당권 되어 있던위 매매계약의 내용에 의한 부채건을 해결하도록 한다.5. 위 부동산의 매매로 인하여 발생한 부가세 대금 중 오천만원 (₩50,000,000)을 피고가 B 사장 원고에게 2008. 11. 말일까지 지불하기로 한다. (대구은행, G, H)으로 송금하기로 한다.

6) In accordance with the sales contract and confirmation of the instant case, the Defendant subrogated to the Dog Capital Co., Ltd., E, C, and Daegu Bank as follows, and the obligees as to each of the instant real estate.

The provisional attachment registration of each name and the establishment registration of mortgage have been cancelled as follows.

A person shall be appointed.

C. On April 2, 2009, the Korea Credit Guarantee Fund for Provisional Attachment of Claims against the Defendant in the instant sales contract against the Defendant in the amount of KRW 170,00,000, out of the sales price delay under the instant sales contract against the Defendant in the claim for the prior reimbursement claim against the Credit Guarantee Fund from this Court (the 2009Kadan 60855), and the provisional attachment decision against the instant claim was issued on April 3, 2009. The provisional attachment decision against the instant claim was served on the Defendant on April 3, 2009.

D. A real estate provisional attachment B, on April 15, 2009, with B’s claim from this court (2009Kadan6664), obtained a provisional attachment order on each of the real estate of this case with respect to the remaining claims (total amount of KRW 336,395,740) against B as claims against B, and on the same day, the provisional attachment order on each of the real estate of this case was completed (hereinafter “B’s provisional attachment order on the above real estate,” “B’s provisional attachment registration,” and “B’s provisional attachment registration”). The detailed details of the above claims are as follows.

(A) Details of claims (Evidence 2-1) and (1): 107,136,00 won: Daegu Bank obligations: 200,000 won: 30,000 won after subrogation : 27,367,740 won: 1,892,00 won after subrogation by Adddden Korea Corporation: 336,395,740 won.

E. Final settlement agreement, etc. between B, the Plaintiff and the Defendant

1) On May 27, 2009, B, the Plaintiff (B’s joint guarantor) and the Defendant decided to terminate the sales contract for each of the ancillary facilities listed in [Attachment II](3) through (7) of the instant sales contract (hereinafter “each of the ancillary facilities of this case”) and prepared the final settlement agreement (hereinafter “the contents indicated in the instant final settlement agreement”) with the following contents.

The final settlement agreement (No. 3-1 of the evidence A) PEJEC T: The settlement of the sales contract for real estate and its accessory facilities (the instant sales contract) : B agrees with the defendant to settle the debt amount of the sale and purchase real estate and its accessory facilities, such as the settlement statement attached to the sales contract for F real estate and its accessory facilities, and agree to settle the settlement of the settlement of the debt amount of the sale and purchase real estate and its accessory facilities, as attached to the sales contract for F real estate and its accessory facilities; and thereafter I agree to do not raise any civil or criminal objection against the defendant. [The settlement statement of the sale and purchase contract for real estate and its accessory facilities (hereinafter referred to as "the settlement statement of this case") * (A-B), 279,136,00 won (A) - 317,117,373 won (B) - 37,981,373 won (B) - It is agreed that the settlement of the settlement of losses between the defendant's claims under the sales contract of this case and its accessory facilities are not made.

2) On May 2009, B, the Plaintiff (B’s joint and several sureties) and the Defendant entered into a contract for the transfer of business rights with respect to the gambling packaging equipment developed, designed, manufactured, supplied, or sold by B, to the Defendant, all business rights related to the items of business, technical data (including patents, design registration, trademark registration, and trademark registration), and sales, and in return, to pay 15% of the Defendant’s net profit that the Defendant supplied and sold the above gambling packaging equipment to B and the Plaintiff.

3) On May 27, 2009, B, the Plaintiff (B’s joint guarantor) and the Defendant drafted a letter of commitment to loan and repayment (hereinafter “instant letter of commitment to loan and repayment”) with the effect that on June 5, 2009, the Defendant borrowed KRW 85,000,000 from the Defendant under the Plaintiff’s joint and several sureties. The details of the letter of commitment to loan and repayment are as follows.

차용 및 변제 확약서(갑 제3호증의 4)차용금액 : 팔천오백만원정 (₩85,000,000)B은 피고로부터 위 차용금을 2009. 6. 5.부터 2010. 6. 4.까지 차용하며, 위 차용 만기일에 변제할것을 확약합니다.만일 B이 위 차용 만기일이 도과한 후에 피고에게 변제를 하지 아니할 경우, 피고는 위 차용인을 상대로 민, 형사상 어떠한 방법으로는 그 변제에 대한 행위를 가할 경우 B은 피고에게 일체 이의를 제기하지 않으며, 그에 따른 책임을 지는 것에 대하여 B의 연대보증인인 원고도 함께 확약합니다.단, B과 피고 간에 발생하는 경북 칠곡군 F 공장의 임대차 보증금과 임대기간 중 B이 피고에게 지급하는 월 임대료는 그 지급된 금원의 총액을 위 차용금에서 감액하여 그 차액금을 B이 피고에게변제하는 것으로 한다.이에 B은 동의하고, 피고에게 변제공정증서를 작성 · 교부하는 것에 동의한다.

4) On May 5, 2009, the Defendant drafted a “written promise of payment” (hereinafter “written promise of payment”) with the effect that “the Defendant shall pay KRW 85,000,000 and KRW 135,000,000 based on the loan of this case and the written promise of repayment to the Plaintiff, a joint guarantor thereof, B and the Plaintiff, a joint guarantor thereof, by June 5, 2009.

5) On June 5, 2009, in order to secure the payment of the borrowed loan obligation based on the loan and the Plaintiff’s letter of undertaking of repayment, B, on June 5, 2009, a notary public, who borrowed KRW 85,000,000 from the Defendant on June 4, 2010, with the Plaintiff’s joint and several surety, set up an authentic deed of a monetary loan agreement for consumption (hereinafter “notarial deed of this case”) as No. 109 on June 1, 2009, with the content that “the Defendant borrowed KRW 85,00,000 from the Defendant on June 5, 200.”

6) On June 5, 2009, the registration of provisional seizure B on each of the instant real property was cancelled due to the cancellation of attachment.

7) On July 27, 2010, B, the Plaintiff, and the Defendant drafted “a contract for succession to and redemption of the obligation for full-time loan for consumption (hereinafter “the instant contract for succession to and redemption of the obligation”) with respect to the Defendant, which read that the Plaintiff, a joint guarantor, would succeed to the obligation of the loan (principal obligation) based on the instant contract for loan and reimbursement against the Defendant.” The specific content of the instant contract for succession to and redemption of the obligation is as follows.

The Plaintiff shall succeed to all the responsibilities of KRW 84,00,00 (the sale price) loaned by the Defendant to B under subparagraph 4 of Article 1 of the Loan and Repayment Agreement.Article 2 of the Plaintiff’s succession obligation to the Defendant is due on July 24, 2012.Article 3 of the Plaintiff shall assist the Defendant in good faith and sincerity and comply with the following provisions. ① The Defendant shall reduce the amount of 10% of the net profit of the sale price for the launch period from the Plaintiff’s loan, whichever is above 40,00 won per month, and the minimum expenses shall be paid to the Plaintiff in accordance with the Defendant’s payment criteria. ② The Plaintiff shall assist the Plaintiff in the repayment of the loan amount of KRW 80,00,00 (the sale price of the loan amount of KRW 70,000) by the due date, even if the loan amount has been repaid before the due date, the remainder of the loan amount of KRW 50,000,000,000,000.

F. From January 6, 2011 to March 7, 2012, the Defendant entered into a contract between the Plaintiff and the Defendant for the payment of brokerage commission with respect to the Plaintiff’s act of sales brokerage for the launch of the launch from January 6, 2011 to March 7, 2012, “the terms indicated in the instant contract for the payment of brokerage commission” (hereinafter referred to as “instant contract for the payment of brokerage commission”). The main content of the instant contract for the payment of brokerage commission is as follows:

A person shall be appointed.

A person shall be appointed.

2. Brokerage commission shall, in principle, be paid in full by the supplier (the defendant) to the broker (the plaintiff).2. Brokerage commission shall be established at the same time as the contract between the supplier (the defendant) and the buyer.3. The payment of brokerage commission shall be applied from the down payment.4. The method of payment shall be settled without delay in preparation for the total amount to be received by the supplier (VI separate) and the brokerage commission from the buyer and in the event of the full payment. (See evidence 5-1, 3) 5. The overdue interest rate shall be 25% per annum.

(g) The process of filing and executing claims for reimbursement from the Credit Guarantee Fund;

1) On August 20, 2009, the Korea Credit Guarantee Fund filed a lawsuit against B, B’s representative director T, and the Plaintiff, etc. for the claim for reimbursement (2009Gahap9960). The court rendered a favorable judgment of the Korea Credit Guarantee Fund on August 18, 2010, and the said judgment became final and conclusive on November 5, 2010. Of the above final and conclusive judgment, the part on the claim for reimbursement as follows.

B, T, the plaintiff, and Dong Malaysia Co., Ltd. shall jointly and severally pay to the Credit Guarantee Fund 175,03,472 won and 172,824,282 won with 15% interest per annum from July 6, 2009 to November 11, 2009, and 20% interest per annum from the next day to the date of full payment.

2) On January 7, 2011, the Korea Credit Guarantee Fund applied for a compulsory auction of real estate V 107 Dong 1409, Daegu-gu, the real estate owned by the Plaintiff with the above final judgment as the executive title, and the said court rendered a decision to grant a permit for sale of the said real estate on June 16, 201. On August 22, 2011, the Korea Credit Guarantee Fund received dividends of KRW 2,914,120 and the total amount of KRW 15,139,573 (hereinafter “instant dividend”) in accordance with the distribution schedule prepared and finalized by the said court and finalized.

3) On May 24, 2012, based on the final judgment under the above paragraph (1) of the same Article, the Korea Credit Guarantee Fund received the order of provisional seizure of the instant claim from this court (2012 other body7396) to attach the additional KRW 82,00,000, from the original seizure, and issued the order of seizure and collection, and on May 30, 2012, the said order of seizure and collection was served on the Defendant. (4) On August 7, 2012, the Korea Credit Guarantee Fund filed a lawsuit against the Defendant for a claim for collection against the Defendant at this Court (2012Gahap42585). The said court rendered the ruling of recommending reconciliation (hereinafter referred to as the “decision of recommending reconciliation of this case”) on May 23, 2013, which became final and conclusive on June 11, 2013.

The defendant shall pay to the Credit Guarantee Fund 252,00,000 won with interest of 20% per annum from August 16, 2012 to the date of full payment.

5) On June 20, 2013, the Defendant paid 261,097.298 won to the Credit Guarantee Fund in accordance with the decision on the recommendation for reconciliation of the instant case.

[Ground of recognition] A without dispute, Gap evidence Nos. 1 through 10 (including branch numbers in case of additional numbers; hereinafter the same shall apply), Eul evidence Nos. 1, 2, 3, 5, and 6, facts with merit in this court, and the purport of the whole pleadings;

A. The parties' assertion

1) Summary of the Plaintiff’s assertion

A) Invalidity by false conspiracys

B. At the time of the instant final settlement agreement on May 27, 2009, the Plaintiff and the Defendant agreed to pay the Plaintiff KRW 135,000,000 (i.e., borrowed money + KRW 85,000,000 + consolation money + KRW 50,000,000) on June 5, 2009 under the condition that the registration of provisional seizure B and B on each of the instant real estate was cancelled. Accordingly, the instant loan and the letter of promise to repay, prepared by the Defendant upon a request for formal loan certificate, constitutes a false declaration of agreement, and both of the instant authentic deeds prepared thereunder are null and void.

B) Claim on the termination of a mutual aid agreement

B. On July 27, 2010, at the time when the Plaintiff and the Defendant drafted the instant contract for succession to and reimbursement of the obligation, the Plaintiff and the Defendant agreed to: (a) (b) deduct 25% of the net income earned by the Defendant from the sales of automated machines from the obligation to return KRW 84,000,000 under the loan and the letter of commitment to repayment (hereinafter “instant obligation to return”); and (c) (d) agree to the Defendant to the effect that if the Plaintiff either repaid or repaid 60,000,000 of the instant obligation to return to the Defendant by July 24, 2011, the entire obligation to return was extinguished.

After that, on July 20, 201, the Plaintiff agreed to deduct the amount of KRW 60,000,000, which is the aggregate of KRW 10,000,000, and KRW 5,000,000, out of the brokerage commission for the P company, and the amount of KRW 45,000,00,00, which is the raw material price for the Automatic Period Nos. 1 and 2 jointly produced by the Plaintiff and the Defendant from the obligation to return this case. In addition, the Defendant already agreed to deduct the amount of KRW 20,00,000 per 1,00 (the sales price of KRW 200,00,000,000,000) from the obligation to return this case’s amount of KRW 25,000,000,000,000,000 (the amount of KRW 20,000,000,00).

2) Summary of the defendant's assertion

The instant loan and repayment guarantee and the instant notarial deed were drafted by the agreement between the Plaintiff and Defendant 3, and the Defendant actually lent KRW 85,000,000 to the Plaintiff on June 5, 2009.

Before July 27, 2010, the Defendant paid KRW 1,000,000 from the Plaintiff, and agreed to deduct KRW 10,000,000, out of the brokerage commission for the P Company to be paid to the Plaintiff by the agreement between the Plaintiff and the Defendant, from the obligation of return of this case.

In addition, the Plaintiff is not obliged to return to the Defendant KRW 74,00,000 by the authentic deed of this case, since it is not all the mutual aid agreements asserted by the Plaintiff.

B. Relevant legal principles and judgments

1) Relevant legal principles

In a lawsuit seeking confirmation of existence of a pecuniary obligation, if the plaintiff, who is the debtor, claims first and then denies facts which have not occurred, the defendant, the creditor, bears the burden of assertion and proof as to the facts which require the legal relationship. However, if the fact of existence of a right has been asserted and proved, the burden of proof as to the failure or extinguishment of the right is borne by the plaintiff.

2) Determination

A) Determination as to the establishment of the instant repayment obligation

The following facts are acknowledged according to the purport of the whole facts and arguments.

① On May 27, 2009, the Plaintiff and the Defendant respectively drafted the letter of promise to borrow and repay the instant loan, and on June 5, 2009, the instant authentic deed (20% added to the agreed delay interest rate).

② On July 27, 2010, the Plaintiff and the Defendant drafted the instant contract for debt succession and repayment with respect to “B” or the remainder of KRW 84,000,000,000 (the instant obligation for repayment excluding KRW 1,000,000 that was already repaid by the Plaintiff, without any separate agreement on interest and delay damages, to the effect that the Plaintiff, a joint and several surety, will succeed to the principal obligation of B.” In relation to the instant obligation for repayment, the Plaintiff and the Defendant did not separately pay damages for delay to the Defendant, and the Defendant did not seek damages for delay.

In full view of the above facts of recognition, the plaintiff and the defendant shall be deemed to be " at the time of the completion of the loan and repayment guarantee of this case," and only 84,000,000 won (the original debt of this case) among the loan and repayment guarantee of this case by the notarial deed of this case shall be deemed to be "the plaintiff, a joint guarantor, succeeds to the obligation of this case on July 24, 2012 without any separate interest and delay damages, and the remaining additional obligation of this case shall be extinguished."

Therefore, barring any special circumstance, the Plaintiff is obligated to pay to the Defendant the above KRW 84,00,000 with the instant loan and the instant notarial deed and damages for delay at the rate of 6% per annum from July 25, 2012 to the day of full payment, which is the day following the due date.

B) Determination as to the assertion of invalidity by false conspiracy

The evidence submitted by the Plaintiff alone is insufficient to recognize the Plaintiff’s assertion that the instant loan and the instant Notarial Deed based thereon was falsely prepared, and thus invalid by means of false conspiracy, and there is no other evidence to acknowledge it.

Rather, according to the above basic facts, Gap evidence Nos. 4 and 5, and the purport of the whole pleadings, the following facts and circumstances are acknowledged.

① B or the Plaintiff had already repaid the principal amount of KRW 1,00,000 to the Defendant prior to the succession of the instant obligation and the preparation of the reimbursement contract.

② On July 27, 2010, the Plaintiff and the Defendant drafted the instant contract on the succession of the obligation and the repayment that the Plaintiff, a joint surety, shall succeed to the obligation to return the instant case to the Defendant of “B” (the principal obligation).

③ On July 20, 201, the Plaintiff agreed to deduct KRW 10,000,000, out of the brokerage commission for P Company, 50% from the instant obligation for return.

In full view of the facts and circumstances acknowledged as above, it is reasonable to view that the instant letter of loan and repayment undertaking, and the instant notarial deed based thereon was prepared on the premise of B and the Plaintiff’s actual intent of debt burden by mutual agreement between B, the Plaintiff and the Defendant.

Therefore, the plaintiff's assertion that the above conspiracy is invalid is without merit.

C) Determination as to the allegation of extinction by mutual aid agreements, etc.

According to the above facts, the following facts are recognized:

① The instant contract for succession to and redemption of the obligation concluded by the Plaintiff and the Defendant on July 27, 2010 states that the Defendant shall reduce the Plaintiff’s 10% of the net profit of the sales of the sales of the sales of the purchase of the purchase of the purchase of the purchase of the loan (Article 3(1)). The Plaintiff shall deduct the 15% of the net profit of the purchase of the purchase of the purchase of the purchase of the purchase of the purchase of the purchase of the purchase of the purchase of the purchase of the purchase of the purchase of the purchase of the purchase of the purchase of the purchase of the purchase of the purchase of the purchase of the purchase of the purchase from the purchase of the purchase of the purchase of the purchase of the purchase of the purchase of the purchase of the purchase of the purchase of the purchase of the purchase of the purchase of the purchase of the purchase of the purchase of the purchase

On July 20, 201, the plaintiff and the defendant agreed to deduct 10,000,000 won, which is 50% of the brokerage commission for the P company, from the obligation of return of this case.

However, there is no evidence to acknowledge the Plaintiff’s assertion that the Plaintiff agreed to deduct KRW 5,00,000 from the instant obligation for return the amount of KRW 45,00,000 from the brokerage commission for K companies to be paid by the Defendant, and the amount of KRW 1,20,000 from the raw materials used for the production of the 1,2-out period, and KRW 45,000,000 from the instant obligation for return. Moreover, there is insufficient evidence to acknowledge the Plaintiff’s assertion that the Defendant’s net profit earned from the sale of the 1-out period (=20,00,000,000 per performance interest per 1 x 4-), and there is no evidence to

Therefore, among the plaintiff's claim on the termination of the above mutual aid agreement, it is reasonable to claim that the plaintiff deducteds 10,000,000 won, which is 50% of the brokerage commission for P company that the defendant should receive from the defendant from the obligation to return of this case, and all of the remaining arguments are without merit. Ultimately, the defendant's claim for refund by the defendant's letter of loan and performance guarantee against the plaintiff and the Notarial Deed of this case remains 74,00,000 won (=the above 84,00,000 won - the above brokerage commission 10,000,000).

D) Judgment on the Defendant’s defense of set-off

The defendant asserts that the claim for return of the above KRW 74,00,000 against the plaintiff is offset against the monetary payment claim that the plaintiff seeks in this case as follows:

As seen below 3. E., the Defendant’s claim for the return of KRW 74,00,000,000, retroactively to July 24, 2012, which is the set-off date, terminated within the extent of equal amount with the Plaintiff’s claim for compensation money of KRW 57,842,465 [the principal + KRW 50,00,000 + the damages for delay calculated at the rate of 5% per annum from June 6, 2009 to July 24, 2012, which is the set-off date]; therefore, the Defendant’s claim for the return of KRW 74,842,465, which is the set-off date, has merit.

Ultimately, the Defendant’s loan and performance assurance and the claim for return based on the notarial deed of this case remain KRW 16,157,535 (=74,00,000 - KRW 57,842,465).

E) Sub-decisions

Therefore, there is no difference between the Plaintiff’s loan and repayment guarantee and the notarial deed of this case to the Defendant in excess of 16,157,535 won and the annual interest rate of 6% from July 25, 2012 to the date of full payment.

3. Determination on the claim for monetary payment

A. Determination as to claim for payment of damages 18,053,693 won due to the Defendant’s nonperformance of obligation

1) The parties' assertion

A) Summary of the Plaintiff’s assertion

In concluding the instant sales contract with B on September 9, 2008, the Defendant agreed to pay a total of KRW 1,511,877,000 for loans to Daegu Bank B on part of the purchase price (=mortgage security amount of KRW 1,311,87,000 + a loan amount of KRW 200,000 by guarantee from the Korea Credit Guarantee Fund). However, the Defendant did not pay KRW 170,00,000 out of the loans under guarantee from the Korea Credit Guarantee Fund.

On January 7, 2011, 201, the Korea Credit Guarantee Fund won in the lawsuit for indemnity against B and the Plaintiff, filed an application for a compulsory auction on real estate at Daegu-gu 107 Dong 1409, the Plaintiff owned on January 7, 201, and the Korea Credit Guarantee Fund received dividends of KRW 18,053,693 in the above auction procedure on August 22, 2011.

If the Defendant repaid all the remaining loans to KRW 170,00,000 according to the instant sales contract, the said real estate owned by the Plaintiff was not subject to compulsory auction. Therefore, the Defendant is liable to compensate the Plaintiff for the amount equivalent to the instant dividends and damages for delay due to the nonperformance of the instant sales contract.

B) Summary of the Defendant’s assertion

B, on May 27, 2009, the Plaintiff (joint and several sureties) and the Defendant agreed to terminate the sales contract for each of the instant subsidiary facilities, not owned B. Thus, the Defendant agreed to settle the sales price that was not subrogated until that time or unpaid to B in return.

Therefore, the above remaining loans of KRW 170,000,00 as asserted by the Plaintiff are no longer liable for payment by the Defendant, and the Defendant has no responsibility for compulsory execution against the real estate owned by the Plaintiff by the Korea Credit Guarantee Fund following the instant final settlement agreement.

Therefore, the plaintiff's above assertion is without merit.

2) Determination

A) The parties to the instant sales contract are identical to that of B (seller) and Defendant (Buyer). Therefore, even if the Plaintiff is a real manager of B or a party to the instant final settlement agreement, the Plaintiff is a third party in the instant sales contract, even if it is a party to the instant final settlement agreement.

Therefore, even if it is recognized that the Plaintiff’s assertion is not a party to the instant sales contract, the Plaintiff, who is not a party to the instant sales contract, cannot seek damages from the Defendant due to nonperformance under the instant sales contract (the same shall apply to the Plaintiff’s assertion

B) Also, according to the above basic facts and the purport of the entire pleadings, the following facts and circumstances are recognized.

① The remaining purchase price claim (total amount of KRW 336,395,740) recognized as a claim claim at the time of the decision of provisional attachment B is the claim subject to settlement in the instant settlement table prepared at the time of the final settlement agreement, and all of the following are included therein:

A person shall be appointed.

② At the time of the instant final settlement agreement, the Plaintiff (Joint and Several sureties) and the Defendant settled the Defendant’s obligation to pay the sales price under the instant sales agreement, with the following: (a) the sales price corresponding to the part of the instant ancillary facilities, which was partially terminated from B, shall not be refunded to B, and instead, the remaining sales price shall not be paid to B [Article 7 and Article 3 of the instant sales agreement; (b) the sales price corresponding to the portion of the sales price that was partially terminated from B, see Article 7 of the instant sales agreement and Article 3 of the instant confirmation; and (c) the amount of subrogated for B separately from the instant sales agreement, 5 or 11 of the instant settlement agreement; and (b) instead, the sales price shall not be paid to B].

③ The parties to the instant final settlement agreement, B, the Plaintiff, and the Defendant agreed to not raise any civil or criminal objection after the settlement agreement as set forth in the foregoing paragraph (2).

④ On January 7, 2011, after the final settlement agreement of this case ( May 27, 2009), the Credit Guarantee Fund applied for a compulsory auction of real estate owned by the Plaintiff for real estate.

In full view of the facts and circumstances recognized as above, the part concerning each of the instant subsidiary facilities in the instant sales contract was partially terminated by agreement, and all of the Defendant’s remaining obligation to pay the sales price to B was extinguished by agreement.

Therefore, even if the Plaintiff is a party to the instant sales contract, the Defendant’s remaining payment obligation (including the Defendant’s payment obligation of KRW 170,000 to the Daegu Bank) was extinguished as above prior to the application for compulsory auction against the Plaintiff’s real estate owned by the Korea Credit Guarantee Fund (the instant dividend payment is merely a partial repayment of the Plaintiff’s reimbursement obligation to the Korea Credit Guarantee Fund).

C) Therefore, the Plaintiff is a party to the instant sales contract, and the Plaintiff’s above assertion premised on the existence of the Defendant’s obligation to pay the remaining sales price under the instant sales contract is without merit without further review.

B. Determination as to the claim for payment of accrued operating expenses of KRW 3,058,692

1) The parties' assertion

A) Summary of the Plaintiff’s assertion

On July 27, 2010, the Defendant agreed to pay to the Plaintiff general expenses, such as KRW 400,000,000 per month for business expenses, oil bags, and meals, etc., with the business expenses upon having requested the Plaintiff with respect to automatic engines manufactured and sold by the Defendant.

The Plaintiff was unable to receive KRW 669,338 out of the operating expenses for May 2012 from the Defendant (i.e., KRW 1,590,092 - KRW 920,754), and KRW 1,559,519 out of the operating expenses for the six months of the same year (i.e., KRW 1,559,519, KRW 753,790), and KRW 1,583,625 of the operating expenses for the seven months of the same year.

Therefore, the defendant is obligated to pay the above business expenses and damages for delay to the plaintiff.

B) Summary of the Defendant’s assertion

It is unclear whether the Plaintiff paid all the expenses incurred in relation to the automatic launch sales business, and whether the aforementioned unpaid business expenses claimed by the Plaintiff were actually paid or not.

Therefore, the plaintiff's above assertion is without merit.

2) Determination

The plaintiff agreed on July 27, 2010 that "the plaintiff shall assist the plaintiff in good faith in the business of the defendant's launch, and the defendant shall pay to the plaintiff general expenses, such as 400,000 won per month at minimum expenses, oil substitutions, and food substitutions, in accordance with the defendant's payment standards." The above basic facts (see the proviso of Article 3 (1) of the Contract for Non-Succession and Repayment) are as seen above.

However, the statement in Gap evidence No. 11 alone is insufficient to acknowledge the plaintiff's allegation that the plaintiff operated the business for the automatic launch from May 2012 to July 2012, and that the plaintiff spent the total of KRW 4,73,236 (= KRW 1,590,092 for May + KRW 1,559,519 for June + KRW 1,583,625 for July) with the business expenses, and there is no other evidence to prove otherwise.

Therefore, the plaintiff's above assertion is without merit.

C. Determination on the claim for payment of consolation benefits of KRW 50,000,000

1) The parties' assertion

A) Summary of the Plaintiff’s assertion

On May 27, 2009, the Defendant agreed to pay to the Plaintiff KRW 50,000,000 as consolation money by June 5, 2009. Therefore, the Defendant is liable to pay the said consolation money and damages for delay to the Plaintiff.

B) Summary of the Defendant’s assertion

The Plaintiff already paid the above KRW 50,000,000 to the Plaintiff in cash. Therefore, the Plaintiff’s above assertion is without merit.

2) Determination

A) On May 27, 2009, the Defendant written the instant payment undertaking to the Plaintiff (a joint guarantor of B) and the Plaintiff (a joint guarantor of B), and the Defendant written the instant payment undertaking to the Plaintiff, a joint guarantor B and his joint guarantor, with the sum of KRW 85,000,000,000 and KRW 135,000,000,000, based on the instant loan and repayment undertaking, and KRW 50,000,00,000, not later than June 5, 2009.

Therefore, barring any special circumstance, the Defendant is obligated to pay the Plaintiff the consolation money of KRW 85,00,000 and the damages for delay from June 6, 2009, which is the day following the relevant payment date.

B) The written evidence Nos. 3 and 12 alone is insufficient to acknowledge the fact of repayment by the Defendant’s assertion, and there is no other evidence to acknowledge it.

Therefore, the defendant's defense of repayment is without merit.

D. Determination as to the claim for payment of KRW 135,00,000 for brokerage commission

1) The parties' assertion

A) Summary of the Plaintiff’s assertion

The Defendant agreed to pay the Plaintiff a brokerage commission to the Plaintiff in return for the Plaintiff’s sexual intercourse with the sales business of the automatic launch period. Therefore, the Defendant is obliged to pay the Plaintiff a total of KRW 135,000,000 for unpaid brokerage commission calculated as follows and delay damages therefor:

A person shall be appointed.

B) Summary of the Defendant’s assertion

The Defendant paid to the Plaintiff the commission for sales brokerage of the automatic launch machine as follows, and the payment of part of the commission was not actually made. Therefore, there is no unpaid commission for the Defendant to the Plaintiff.

A person shall be appointed.

2) Determination

A) According to the above facts, the following facts and circumstances are recognized.

① The Plaintiff and the Defendant concluded the instant brokerage commission payment contract on a total of six occasions as stated in paragraph (1) with respect to the Plaintiff’s automatic sales brokerage (in the case of the instant brokerage commission payment contract on June 7, 2012, there is no evidence to acknowledge it).

2. The contract for the instant contract for the payment of the brokerage commission is established at the same time as the contract between the supplier (defendant) and the buyer. The payment of the brokerage commission shall be applied from the down payment. The method of payment is written in that the supplier (defendant) shall prepare for the total amount to be received from the buyer (VAT) and the brokerage commission and settle without delay when the payment is made in full.

In light of the above facts, it is reasonable to view the instant brokerage commission payment contract as a legal act under the condition that the actual contract between the defendant and the buyer is established by the act of brokerage of the plaintiff.

B) The fact that the condition of suspension was fulfilled in a juristic act subject to a condition precedent has the burden of proof on the part of the Plaintiff seeking to acquire the right (see, e.g., Supreme Court Decision 2001Da79921, Jul. 26, 2002). The evidence submitted by the Plaintiff alone is insufficient to acknowledge the fact that the contract was formed for the automatic contract between the actual Defendant and the buyer after the contract for the payment of the instant brokerage commission, and there is no other evidence to acknowledge

C) Even if the Defendant recognizes that part of the instant contract for the payment of brokerage commission was concluded by the buyer automatically, according to the aforementioned basic facts and evidence Nos. 4, and the purport of the entire pleadings, the Defendant may recognize the fact that the Defendant deposited KRW 10,000,000,000 in the name of the Plaintiff’s brokerage commission for the part for which the instant contract for the payment was concluded with the buyer on the grounds of the Plaintiff’s brokerage commission for the part for which the instant contract for the payment was concluded.

D) Therefore, the Plaintiff’s above assertion is without merit.

E. Sub-committee

As seen earlier, the remainder of the Plaintiff’s claim, excluding the claim portion of consolation money, is without merit.

Therefore, barring any special circumstance, the Defendant is obligated to pay the Plaintiff the above consolation money of KRW 50,000,000 and the damages for delay from June 6, 2009, which is the day following the due date of the payment.

F. Judgment on the defendant's defense of offsetting

1) Summary of Defendant’s defense

A) The Defendant asserted that the claim for the return of KRW 74,00,000 of the principal except for the portion already repaid or extinguished as set-off among the instant loan and the instant notarial deed was set off against the monetary payment claim (including the above monetary payment claim) sought by the Plaintiff in the instant case.

B) After the instant final settlement agreement, the Defendant paid KRW 261,097,298 to the Credit Guarantee Fund with the amount of money collected from the Plaintiff following the instant settlement agreement. However, since the Defendant subrogated to the Plaintiff’s debt to the Credit Guarantee Fund, it is a defense that the Plaintiff offsets the amount of money paid against the Plaintiff’s claim for reimbursement equivalent to the amount of money claimed in the instant case.

2) Judgment on the defendant's defense of offsetting

First, the defendant's claim for the return of KRW 74,00,000 against the defendant's claim is judged from the offset claim against the automatic claim.

The Defendant’s claim for the return of KRW 74,00,000, excluding the portion already extinguished as a repayment or set-off by the instant notarial deed, against the Plaintiff. As seen earlier on July 24, 2012, the Defendant’s claim for the above-mentioned consolation money claim and the Defendant’s above-mentioned claim for the return was set-off on July 24, 2012.

In addition, the fact that the preparatory document dated September 15, 2014, stating the Defendant’s declaration of set-off against the Plaintiff on an equal amount of the above two claims, was served on the Plaintiff on September 18, 2014, is apparent in the record. Accordingly, the Plaintiff’s above consolation money claim amounting to KRW 57,842,465 [The principal amount + + KRW 50,00,000 + the damages for delay calculated at the rate of 5% per annum from June 6, 2009 to July 24, 2012, which is the set-off day after the date of payment, from June 6, 2009 to July 24, 2012]; thus, the above set-off claim for the return of principal claim amounting to KRW 74,00,000,000, which is the date of the set-off. Therefore, the Defendant’s above offset is reasonable.

Ultimately, all of the Plaintiff’s claim for consolation money was extinguished (the Plaintiff’s claim for offset based on the claim for indemnity amounting to KRW 261,097,298 cannot be determined).

3) Judgment on the plaintiff's second defense

The plaintiff asserts that the defendant's claim for the return of KRW 74,00,000 is null and void by a false declaration of conspiracy, or all of the claims were extinguished by the mutual aid agreement prior to the set-off date. However, this is without merit as seen earlier (see the above 2.b. (b) and (c).

4. Conclusion

Therefore, the plaintiff's claim for the confirmation of existence of the obligation is accepted within the scope of the above recognition, and the remaining claims are dismissed as it is without merit. The plaintiff's claim for monetary payment is dismissed as it is so decided as per Disposition.

Judges of the presiding judge;

Judges Lee Jong-soo

Judges Oo-crimes

1) The written application for change of the complaint, brief, and purport of the claim of this case submitted by the plaintiff is stated as "18,053,695 won"

However, according to Gap evidence No. 6, it is clear that the damages claimed by the plaintiff are KRW 18,053,693, as stated above.

It is reasonable to view it as an obvious clerical error in the indication.

A person shall be appointed.

A person shall be appointed.