2012Da2040 Objection

A Stock Company

B

Seoul High Court Decision 2011Na30101 Decided November 23, 2011

January 29, 2015

The part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the Seoul High Court.

The grounds of appeal are examined.

1. The lower court, on the grounds indicated in its reasoning, determined that the Plaintiff was liable to pay the Defendant a loan of KRW 500 million, interest thereon, and delay damages, based on the instant authentic deed.

Furthermore, with respect to the Plaintiff’s assertion of offsetting against the opposite claim regarding the Plaintiff’s price for merchandise coupons and the exchange fees, the lower court, on February 10, 2007, presumed that the Plaintiff and the Defendant should determine the quantity of merchandise coupons, which were entered and withdrawn between the Plaintiff and the Defendant on the basis of the most objective and accurate basis as to the transaction of merchandise coupons between the Plaintiff and the Defendant, on the basis of the fact that: (a) the Plaintiff’s merchandise coupon Nos. 14-1 and 2 (Collection Evaluation Details) written in electronic form among the data on the quantity of merchandise coupons delivered and stored; (b) on the basis of the amount of merchandise coupons deposited and withdrawn and withdrawn; and (c) on the basis of the quantity of merchandise coupons recognized by the foregoing evidence, recognized that there were opposing claims against the Defendant regarding the amount of KRW 157,571,750 and the exchange fees of KRW 11,274,000 against the Plaintiff, a set-off date.

2. However, the court below determined that: (a) upon examining the entries in the evidence No. 14-1 and No. 2, which are based on the volume of merchandise coupon entry and delivery among the plaintiff and the defendant from January 1, 2006 to February 28, 2007, the total amount of merchandise coupon No. 14-1 and No. 14-2, which were based on merchandise coupon entry and delivery volume; (b) during the above period, the court below found that the amount recognized as being suffered during the same period, based on the above evidence, was the total amount of merchandise coupon No. 2,837,861; and (c) the court below found that the amount recognized as being suffered during the same period, based on the above evidence, was the total amount of merchandise No. 14, 2006, August 14, 2006, Dec. 5, 2006, and January 14, 2007, the court below did not have any reasonable reasons to recognize the quantity of merchandised due to Gap evidence entry.

Therefore, the judgment of the court below, which recognized the plaintiff's counterclaim based on the quantity less than the quantity recognized by the above admitted evidence, is erroneous in the misapprehension of the rules of evidence or in finding facts contrary to logical and empirical rules, thereby affecting the conclusion of the judgment. The ground of appeal assigning this error is with merit.

Meanwhile, the defendant, as the ground of appeal, suffered gift certificates of April 17, 2006, Chapters 44, 992, and 34,650 of the same month and 21.34,650 of the same month, and the court below acknowledged that only 10,410 and 202 were put into storage on each date on the basis of only the description of evidence No. 14-2. However, in light of the records, the part that the court below acknowledged that the amount was put into storage from the defendant on each date is just, and contrary to what is alleged in the grounds of appeal, the court below did not err by violating the rules of evidence or by finding facts contrary to logical and empirical rules. Accordingly,

3. Therefore, the part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Young-young

Justices Min Il-young

Justices Kim Jae-han

Chief Justice Kim Jong-il