2018Da22350 Agreements

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1. B

2. C:

Seoul High Court Decision 2013Na75122 Decided January 17, 2018

June 28, 2018

All appeals are dismissed.

The costs of appeal are assessed against the Defendants.

The grounds of appeal are examined.

1. The lower court determined that, on the premise that the agreement of this case and the promissory note were duly prepared, the Plaintiff and the Defendants were jointly and severally liable to pay the Plaintiff interest and delay damages within the limit of the interest rate under the Interest Limitation Act, on the following grounds: (a) on August 21, 2009, the Plaintiff and the agreement of this case were based on the premise that the agreement of this case were duly prepared; and (b) on the premise that the agreement of this case and the agreement of this case were duly prepared, the Plaintiff and the Defendants were jointly and severally liable to pay the Plaintiff each of the above funds, interest and delay damages within the limit of the interest rate under the Interest Limitation Act; and (c) on the premise that the agreement of this case and the promissorysory note were jointly and severally prepared, the lower court determined that the Defendants were jointly and severally liable to pay the Plaintiff the above money and the principal and interest of the Plaintiff, interest on each of the loans, delay damages, etc., and thereafter, the Defendants jointly and severally liable to repay payment to the Plaintiff.

2. In light of the records, the above determination by the court below is just, and contrary to what is alleged in the grounds of appeal, it did not err by misapprehending the legal principles as to commercial law regarding the dividend, contract with condition precedent, interest limitation law, and appropriation of performance, or by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules

However, the lower court recognized the rate of damages for delay on the invested principal under the agreement between the Plaintiff and the Defendants on August 21, 2009 as 48% per annum pursuant to the agreement between the Plaintiff and the Defendants, and it is reasonable to view that the rate of damages for delay is the same as the interest prior to the due date. Therefore, the lower court erred by misapprehending the Interest Limitation Act as to the interest rate on the said invested principal. In so doing, the lower court erred by paying the amount repaid by the Defendants to the damages for delay calculated excessively in excess of the interest rate under the Interest Limitation Act. However, even if the amount repaid by the Defendants was appropriated to the damages for delay calculated at the rate of 30% per annum on the invested principal and the remainder is appropriated to other obligations, the lower court’s judgment cannot be reversed on the ground that it is apparent that the lower court did not pay the investment revenue of KRW 1 billion and the damages for delay under the agreement as of August 21, 2009, which recognized the Defendants’ obligation

3. Therefore, all appeals are 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 on the bench.

Justices Kim Jae-young

Justices Go Young-young

Justices Kim Jong-il

Justices Cho Jae-sik in charge