(영문) 서울고등법원 2015.4.2. 선고 2014나51840 판결

2. The costs of litigation incurred by the appeal by the Plaintiff (Counterclaim Defendant) B are assessed against the Plaintiff (Counterclaim Defendant) and the Defendant (Counterclaim Plaintiff) on the grounds of appeal by the Defendant (Counterclaim Plaintiff).

Purport of claim and appeal

1. Purport of claim

A. Main suit: The defendant (hereinafter referred to as "the defendant") shall pay to the plaintiff (the counterclaim defendant; hereinafter referred to as "the plaintiff") 127,762,89 won and the amount calculated by the rate of 20% per annum from the day following the day when the copy of the claim and the application for modification of the cause of the claim was served on September 30, 2013 to the day of complete payment. Preliminaryly, the defendant shall pay to the plaintiff B 128,970,000 won and the amount calculated by the rate of 20% per annum from the day following the day when the copy of the application for modification of the claim and the cause of the claim was served on July 9, 2014 to the day of complete payment (the court of first instance dismissed the claim against the plaintiff, but excluded from the scope of adjudication per the plaintiff's appeal since the plaintiff did not appeal against this).

B. Counterclaim: The plaintiffs shall jointly and severally pay to the defendant 76,047,760 won and the amount calculated by the ratio of 5% per annum from April 18, 2014 to the delivery date of a copy of the claim for the counterclaim of this case and of the application for modification of the cause of the counterclaim of this case, and 20% per annum from the next day to the day of complete payment.

2. Purport of appeal

A. Plaintiff B

The part of the judgment of the court of first instance against the plaintiff B, which orders additional payment under the following among the part concerning the main claim, shall be revoked. The defendant shall pay to the plaintiff B 89,094,971 won and the amount calculated by the rate of 20% per annum from the day following the day of service of the copy of the claim and the application for modification of the cause of claim as of September 30, 2013 to the day of complete payment. Preliminaryly, the defendant shall pay to the plaintiff B 90,302,072 won and the amount calculated by the rate of 20% per annum from the day following the day of service of the copy of the application for modification of the claim and the cause of claim as of July 9, 2014 to the day of complete payment.

B. Defendant

(1) The part against the defendant among the part concerning the conjunctive main claim in the judgment of the court of first instance is revoked, and the plaintiff B's conjunctive main claim corresponding to the revoked part is dismissed.

(2) The part concerning the counterclaim against the judgment of the court of first instance shall be revoked. The plaintiffs shall jointly and severally pay to the defendant 76,047,760 won and the amount calculated by the ratio of 5% per annum from April 18, 2014 to the service date of a copy of the application for purport of the counterclaim and modification of the cause of the counterclaim of this case, and 20% per annum from the next day to the date of full payment.

Reasons

1. Basic facts

A. On June 2005, Plaintiff B agreed to jointly purchase an apartment and dispose of it and distribute the profit by selling it (hereinafter “instant investment agreement”).

B. On June 2, 2005, the Plaintiff B and the Defendant purchased from D each land of Seongbuk-gu Seoul and G and its ground (hereinafter “H real estate”) located within the business territory of the redevelopment association from D around June 2, 2005, in a joint purchase of KRW 249 million, and completed the registration of ownership transfer in the name of the said Plaintiff and the Defendant, one half of each of them.

C. On July 15, 2005, the Plaintiff B and the Defendant paid 100 million won of H real estate purchase price of KRW 249 million as interest-free moving expenses, KRW 40 million as interest-free moving expenses, and KRW 77,825,00 as the money loaned as security by Seongbuk-gu Seoul International Apartment 202 Dong 1004 (hereinafter “I apartment”) (hereinafter “I apartment loan”) owned by the Defendant, respectively. The remaining KRW 31,175,00 was borne by the said Plaintiff. In addition, the said Plaintiff spent KRW 6,639,000 in total for all kinds of expenses, such as acquisition tax, registration tax, brokerage fee, registration fee, etc. during H real estate purchase process.

D. On September 2, 2006, the Plaintiff B and the Defendant purchased as aground and completed the registration of ownership transfer in the name of the Defendant by purchasing from the JJ on September 22, 2006 the 4330,000 won (the actual payment amount is KRW 43,300,000,000,000,000 won (the remainder is the acquisition of the obligation to pay the sale price) of K Apartment 101, Dong 1303 (hereinafter “K Apartment”).

E. As the redevelopment project for H real estate was implemented, the Plaintiff B and the Defendant purchased the Seongbuk-gu Seoul Metropolitan L apartment 102 Dong 702 (hereinafter “L apartment”) from the above redevelopment association as the shares of its members. Of the sale price for K apartment, the sales price for K apartment was sold at KRW 48 billion to M on March 28, 2007 for the payment of intermediate payment and remainder, and was paid KRW 157,79,861 after deducting various expenses, including interest-free, interest-free, and relocation expenses from the sales price.

F. Of the above sale price of KRW 157,79,861, Plaintiff B used KRW 15 million as the cancellation price for N andO, the former purchaser of L apartment sales right, KRW 1.4 million as the brokerage commission for the sale of L apartment sales right, KRW 1.3 million as the intermediary commission paid for the purchase of K apartment, KRW 43,300,000 as the intermediate payment for K apartment on April 16, 2007, and KRW 56,66 million as part of the remainder of K apartment on October 1, 207, respectively. The above Plaintiff and the Defendant divided KRW 4 million as part of the profit distribution amount.

G. On November 3, 2007, the Defendant sold I apartment to P for the payment of the K apartment sale price in KRW 25 million, and then remitted the amount of KRW 17 million out of the remaining 12.7 million from the purchase price to the new bank account in the name of the Defendant managing the Plaintiff B (the above Plaintiff and the Defendant’s investment fund management account; hereinafter “the new bank account in this case”). The Defendant delivered the remainder of KRW 20 million to the Plaintiff B for the use of taxes and various expenses for the sale of I apartment.

H. On January 16, 2008, the Defendant completed the registration of preservation of ownership of K apartment in the name of the Defendant, and on the same day, borrowed the above apartment as collateral and remitted it to the new bank account of this case to the new bank account (hereinafter “K apartment loan”). Around that time, the Defendant occupied the above apartment and has resided up to now.

I. On December 18, 2007, Plaintiff B withdrawn and used KRW 30,543,445 in order to pay interest on the intermediate payment loan, and KRW 30,919,330 in order to pay the remainder and its delay damages, respectively, from the new bank account of this case. Plaintiff B withdrawn and used KRW 259,941,798 in order to repay the first or the second intermediate payment loan of K Apartment, and KRW 30,919,30 in order to pay the remainder and its delay damages.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 8, 16, Eul evidence Nos. 1, 8, 10, 12, and 13, the purport of the whole pleadings

2. The parties' assertion

A. Demand for principal action

1) Plaintiff B’s primary claim

Since a partnership relationship is established between the plaintiffs and the defendant to jointly purchase apartment houses and dispose of them and distribute their profits from them, the defendant is obligated to pay to the plaintiff B the amount of settlement following the termination of the partnership relationship as follows: 127,762,89 won corresponding to the investment ratio of the plaintiffs among the union property.

(a) Partnership property: 608,230,510 won in total;

(a) K apartment: 450 million won;

(b) H real estate investment return: 50 million won; and

(3) Claim for return of unjust enrichment equivalent to the rent for the Defendant due to the use and profit-making of K apartment, which is the property of the association: KRW 108,230510 (from January 16, 2008 to September 16, 2013)

B) Investment ratio of the plaintiffs: 42.74%

(1) The amount of investment by the plaintiffs: 130 million won

(A) 34.5 million won (=the purchase price actually paid 19.0 million won - the Defendant’s investment amount of KRW 74.5 million) at the time of purchase of H real estate

(B) Investment amounting to KRW 83,300,000 (=actual payment purchase price of KRW 433,300,000 + premium of KRW 40,000) at the time of purchase of K apartment sales right

(2) The defendant's investment amount: a total of KRW 177.1 million

(가) H부동산 매수 당시 투자액 7,450만 원[≒ I아파트 대출금 77,825,000원 - 매수 당시 원고들이 지출한 각종 비용 6,639,040원 중 피고의 분담분 3,319,520원)

(B) Investment amount at the time of purchase of K apartment sales right: KRW 12.6 million (= KRW 97 million deposited in the new bank account of the instant I apartment sales price + KRW 5.6 million remaining remaining balance after the Defendant received and used it as various sales costs)

(3) Investment ratio of the plaintiffs: 42.74% [130,2200,000 investment amount of the plaintiffs (130,000,000 investment amount of the plaintiffs + KRW 132,22 million + KRW 177,100,000 investment amount of the defendant]

C) The settlement amount to be received from the Defendant = 127,762,89 [the amount to be received from the Defendant = (the amount to be KRW 608,230,510 - the amount to be invested by the Plaintiffs - the amount to be KRW 132,220,000,000 in the Defendant’s investment amount to KRW 177,710), X 42.74/100];

2) Plaintiff B’s conjunctive claim

If the instant investment agreement was concluded between the Plaintiff B and the Defendant, and only between the said Plaintiff and the Defendant, the Defendant is obligated to pay to the said Plaintiff the settlement amount of KRW 12,8970,000 due to the termination of the partnership relationship as follows.

A) Unclaimed amount out of the Plaintiff B’s investment amount: KRW 68.97 million (i.e., investment amounting to KRW 34.5 million at the time of purchase of H real estate + KRW 70.7 million investment + interest amounting to KRW 14.4 million for K apartment loans at the time of purchase of K apartment sales right - KRW 50 million in withdrawal and use from the new bank account of this case, and KRW 50 million in the claim as to the primary cause of claim, which was partially reduced by only the investment amount at the time of purchase of K apartment sales right)

B) Claim for return of unjust enrichment equivalent to the rent for the Defendant due to the use and profit-making of K apartment, which is the property of the association: KRW 60 million (from January 1, 2008 to June 30, 2014) out of KRW 120 million, which is the above Plaintiff’s share ratio (50%)

B. The defendant's counterclaim and counterclaim

1) Claims such as loans owed by the Defendant against the Plaintiffs

A) On July 16, 2005, the Plaintiff agreed to pay KRW 23 million out of the I apartment loans one month after the date of lease and to bear interest thereon. However, even though the Plaintiff was paid KRW 1.7 million out of the interest, the Plaintiff was not paid the principal and KRW 23 million and the remainder interest and delay damages (as of April 18, 2014).

B) On December 18, 2007, the Plaintiff agreed to pay KRW 50 million, among K Apartment loans, one month after the date of lease, and agreed to pay interest thereon to the Plaintiffs. However, the Plaintiff did not receive the principal amount of KRW 50 million and interest thereon (as of April 18, 2014).

C) The Plaintiffs paid only KRW 870,000 out of the interest on the Plaintiffs’ share of KRW 40,000,000 to H real estate, and did not pay the remaining KRW 925,322.

D) On December 18, 2007, the Plaintiffs received KRW 20 million from the Defendant from the sales price of I Apartment, and used it for taxes and various expenses related to the sale of the said apartment, and did not refund KRW 5,610,347.

E) Although interest on K apartment loans should be shared by the Plaintiffs and the Defendant, only the amount of KRW 14.5 million out of the share of the Plaintiffs is paid and the remainder of KRW 18,177,031 is not paid.

F) Although the Defendant’s personal money paid 30,543,445 won as interest on intermediate payment and delay damages for the remainder of K apartment sales price, 919,30 won as well as 12,79,850 won as interest on intermediate payment, and 45,462,625 won as well as registration tax and 12,79,850 won as at the time of the purchase of K apartment, the Defendant did not pay 22,731,312 won as part of the Plaintiffs’ share (50%) among them.

G) Therefore, the Defendant’s loans and other claims against the Plaintiffs amounting to KRW 144,906,066 in total (i.e., loans amounting to KRW 23 million + KRW 8,825,068 in interest and delay compensation + KRW 50 million in interest and delay compensation + KRW 15,636,986 in interest on the loan + KRW 925,322 in interest on the moving expenses for oil and interest on the moving expenses + KRW 5,610,347 in the sales price of I apartment + KRW 18,17,031 in interest on K apartment loans + KRW 18,177,031 in the amount of interest on K apartment loans + KRW 22,731,312 in all kinds of expenses paid by the Defendant for K apartment.

2) The defendant's obligation to settle accounts against the plaintiffs

A) The amount of investment by the plaintiffs: 84,300,070 won

B) Damages to be borne by the Defendant: 15,441,764 won (=38,604,411 won x 40/100 x 488,604,411 won for the purchase of K apartments, but the current market price was 450,604,411 won, which is merely 38,604,411 won, and thus, the Plaintiffs should bear 15,441,764 won, an amount equivalent to the investment ratio (40%) of the Plaintiffs among the above damages.

C) Debt for settlement: 68,858,306 won (=84,300,070 - 15,441,764)

3) The Defendant’s additional loan claims against the Plaintiff B

The Defendant, on November 3, 2007, remitted to the new bank account of this case out of the purchase price of I Apartment on November 3, 2007, KRW 53.5 million, which was half of KRW 17 million, was also contributed by the Plaintiff B by lending from the Defendant.

4) Claim for set-off and counterclaim

Therefore, the Defendant has a claim amounting to KRW 76,047,760 against the Plaintiffs (i.e., loans, etc. 144,906,06,066 - Amounting to 68,858,306). Accordingly, with automatic bonds, it offsets the Plaintiffs from the amount equal to the above claim for the settlement of accounts and the amount equal to that of the Plaintiffs, and claims joint payment of the said money against the Plaintiffs by counterclaim. In addition, upon the delivery of a duplicate of the statement of grounds of appeal in this case, the Defendant offsets the Defendant’s claim amounting to KRW 53,500,000 against the Defendant against the Defendant in addition to the amount equal to that of the Plaintiff’s claim against the said Plaintiff by counterclaim.

5) 손익분배비율

원고들과 피고 사이에 명시적인 손익분배비율 약정이 없었으므로, 투자의 결과물은 투자금액의 비율에 따라 나누어야 한다.

3. Determination as to Plaintiff B’s primary main claim and Defendant’s counterclaim against Plaintiff A

A. First, there is no evidence to acknowledge that Plaintiff A is a party to the instant investment agreement or is a member of the association whose members are Plaintiffs and Defendant.

B. In addition, each statement of Gap evidence Nos. 16, Eul evidence Nos. 16, Eul evidence Nos. 3, 5, 6, 10, 11, Eul evidence Nos. 14-1, Eul evidence Nos. 19, Eul evidence Nos. 37-1 through 4, Eul evidence Nos. 38, 39 is insufficient to recognize that the plaintiff jointly borrowed money from the defendant in relation to the investment agreement of this case with the plaintiff No. 16, agreed to share half of the expenses paid by the defendant, or failed to return part of the apartment sale price, and there is no other evidence to prove otherwise.

C. Therefore, the primary main claim against the defendant of the plaintiff B and the defendant's counterclaim against the plaintiff A, which is premised on different facts, are all without merit (in the case of the plaintiff B, the purport of claiming the settlement amount following the termination of the partnership relationship between the plaintiff B and the defendant, can be deemed to be included in the primary claim. However, since it is asserted as a separate preliminary claim, it shall be determined in the part on the conjunctive claim).

4. Judgment on the plaintiff B's conjunctive main claim

A. Relevant legal principles

1) Where one member withdraws from a two partnership, the partnership relationship is terminated, but the partnership is not dissolved, barring any special circumstance, and the existing joint business may continue to exist as the remaining property belongs to the sole ownership of the partnership member (see, e.g., Supreme Court Decision 2004Da49693, 49709, Mar. 9, 2006).

2) In a case where one member withdraws from two cooperatives, the calculation due to withdrawal between the withdrawing person and the remaining person shall be made in accordance with Article 719(1) and (2) of the Civil Act, barring special circumstances, the amount equivalent to the withdrawing person’s share out of the partnership’s property evaluated based on the “the status of the partnership’s property at the time of withdrawal” shall be returned in cash, and the ratio of shares of the relevant union member shall be calculated based on the “ratio of distribution of profits and losses inside the partnership” unlike the ratio of the value of the assets actually invested in the case of the liquidation of the partnership (see the above Supreme Court Decision 20

(b) Method of calculating settlement money following the establishment and termination of the partnership relations; and

1) According to the facts acknowledged in paragraph 1, the relationship between the Plaintiff B and the Defendant was established through the instant investment agreement to jointly purchase apartment and dispose of it and distribute the marginal profits.

2) Although the Plaintiff B’s assertion is somewhat ambiguous, in light of the fact that one of the two members seeks the payment of settlement or the return of investment funds on the premise that the Defendant continued to hold K apartment, which is the partnership’s property, it appears to the purport of expressing his intention to withdraw from the association of this case and seeking the payment of settlement funds upon the termination of partnership relations against the remaining Defendant.

3) Meanwhile, on the other hand, the fact that the legal brief dated March 14, 2013 reached the Defendant on March 18, 2013 is apparent in the record, which contained the Plaintiff’s expression of intent to pay settlement or return investment funds on the premise that the Defendant continues to hold the apartment.

4) Therefore, the Plaintiff’s withdrawal from the association of this case occurred on March 18, 2013, and barring any special circumstance, the remaining Defendant, who is the withdrawing party, is obligated to return to the Plaintiff the amount equivalent to the above Plaintiff’s share, i.e., the ratio of sharing profits and losses inside the association, among the property of the association of this case appraised based on the partnership’s property status as of March 3, 2013 and 1

C. The financial status of the instant association at the time of March 3, 2013, 18,

(a) Active property: Total of 561,019,405 won;

A) K apartment: 450 million won at the market price around August 30, 2013;

[Grounds for recognition] The result of the market price appraisal by the appraiser Q of the first instance trial, the purport of the whole pleadings

B) Claim for return of unjust enrichment equivalent to the rent for the Defendant: KRW 61,019,405

(1) The Defendant continued to reside in the K Apartment, which is the property of the instant association, from January 16, 2008 to March 18, 2013 with his/her family members and used or profit from such apartment, the Defendant’s share of the monthly rent for the period from January 16, 2008 to November 30, 209, KRW 1,46,670, December 1, 2009 to November 30, 201; KRW 1,700,000 from December 1, 201 to November 30, 201; or the Defendant share of the result of the entire appraisal between the parties during the period from January 16, 2008 to November 30, 201 to KRW 1,60,000,000 from December 1, 201 to KRW 361,671,617,206,2017;

Therefore, barring special circumstances, the defendant is obligated to pay the association of this case unjust enrichment equivalent to the rent due to the use and profit-making of K Apartment corresponding to the above residence period.

(2) As to this, the Defendant did not have an obligation to pay unjust enrichment because the Defendant agreed with the Plaintiff B to reside in K apartment free of charge, and even if not, the Plaintiff B did not have any capital gains tax imposed on the Defendant when selling K apartment without selling I apartment. However, if the Defendant moved into K apartment and live in for only two years, he could be exempted from heavy taxation of capital gains tax. Thus, the Defendant recommended the Defendant’s family to sell the apartment living in K apartment and move into the K apartment. Accordingly, the Plaintiff B and the Defendant to be exempted from heavy taxation of capital gains tax of three houses for one household and to raise the purchase price of K apartment, and there was an implied agreement between the Defendant’s family members to move into the K apartment and use it free of charge and profit therefrom.

In full view of the following facts: (a) Nos. 40 and 41 (including each number); (b) part of the evidence No. 24; and (c) part of the testimony of the witness R of the first instance trial, the Plaintiff B and the Defendant, prior to the sale of I apartment, sold I apartment owned by the Defendant residing with his family members and used the purchase price for the purchase price for K apartment, and used the purchase price for the purchase price for K apartment, and the Defendant was residing in K apartment, but agreed to dispose of the said apartment after about two years from the date the registration of ownership transfer was completed in the name of the Defendant with respect to K apartment.

However, according to Gap's evidence Nos. 3, 25 through 27, 32, Eul's evidence Nos. 3 and 42 (including each number), and witness J of the first instance trial, the plaintiff Eul paid the plaintiff's apartment house seller's purchase price of the apartment house with the amount of KRW 7 million, and KRW 300,000,000,000,000 to the plaintiff's apartment house seller at the time of the above disposal of the apartment house Nos. 1, 206 and 2070,000,000,000 won were more than the defendant's 20,000,000,000,000 won were more than the defendant's 20,000,000,000 won was more than the defendant's 3,000,000,000,000 won, and it is difficult to find that the defendant's testimony of the plaintiff's apartment house No. 137,282.

However, with regard to the fact that the defendant agreed to reside in the above apartment for the period exceeding the above two years, the testimony of the witness R of the first instance trial alone is insufficient to recognize it, and there is no other evidence to acknowledge it.

(3) Therefore, the instant association does not have a claim for return of unjust enrichment equivalent to the rent for the period from January 16, 2008, when the registration of initial ownership was completed in the Defendant’s name, to January 15, 2010, which was two years from January 16, 2008. However, the instant association has a claim for return of unjust enrichment for the period from January 16, 2010 to March 18, 2013, which is the date of withdrawal of the said Plaintiff.

The amount shall be 61,019,405 won [the aggregate amount shall be 61,00 won = 17,767,741 won (the amount shall be 15,170,000 won per month from January 16, 201 to November 30, 2010; the same shall apply hereinafter] + 19,20,000 won (the amount shall be 12 months from December 1, 201 to November 30, 201, and 1.6 million won per month) + 18,80,040 won (the amount shall be 12 months from December 1, 201 to November 30, 201 to 1,56, 700 won) + 30,000 won (the amount shall be 16,70,000 won per month; hereinafter the same shall apply) + 19,200,000 won per month;

C) Claim for return of unjust enrichment against Plaintiff B: KRW 50 million

The Plaintiff B withdrawn KRW 50 million from the new bank account of this case on December 20, 2007 and used personally. Thus, the instant union has a claim for return of unjust enrichment of KRW 50 million against the said Plaintiff.

2) Small property: K apartment loan obligation amounting to KRW 280 million.

【Ground for Recognition: No dispute exists】

3) Partnership property at the time of Plaintiff B’s withdrawal: 281,019,405 won (affirmative: 561,019,405 won - 280 million won of passive property)

D. The settlement money that the defendant must pay to the plaintiff B

1) 손익분배비율

제1항에서 인정한 사실들 및 기록상 명백한 사실들을 통해 알 수 있는 다음과 같은 사정들을 종합해 보면, 원고 B과 피고는 이 사건 조합 내부의 손익분배비율을 각 50%로 약정한 사실이 인정된다.

A) The Plaintiff B and the Defendant distributed the same amount of KRW 8 million among the profits accrued from H’s real estate in the same way.

B) Plaintiff B asserts that half of the expenses he paid should be borne by the Defendant in the process of purchasing H real estate, and the Defendant also claims that half of the interest on H real estate relocation expenses should be borne by the Plaintiff.

C) The fact that both the Plaintiff B and the Defendant should share one half of the interest on the K apartment loans.

D) Plaintiff B claimed against the Defendant only half of the amount of unjust enrichment equivalent to the Defendant’s rent due to the use and profit-making of the K apartment, and the Defendant also claimed that half of the acquisition tax and registration tax on the K apartment should be shared by the said Plaintiff.

(ii)the amount of settlement;

Therefore, barring any other circumstances, the Defendant is obligated to pay the Plaintiff B a sum of KRW 140,509,702 (i.e., union property 281,019,405 KRW 1/2) with the settlement of accounts due to the withdrawal from partnership.

5. The defendant's counterclaim against set-off and the plaintiff B's counterclaim against set-off

A. The defendant's automatic claim

1) Loans of KRW 23 million on July 15, 2005, interest thereon, and damages for delay on loans of KRW 23 million

가) 앞서 인정한 사실들 및 갑 제16호증, 을 제10, 19호증의 각 기재에 변론 전체의 취지를 더하여 인정되는 다음과 같은 사정들, 즉 ①원고 B과 피고 사이에서 약정된 조합 내부의 손익분배비율이 50:50이고, 여기에 투자과정에 나타난 제반 사정 등을 고려해 볼 때, 이 사건 투자약정 당시 합의된 투자비율 역시 50:50일 것으로 추정되는 점, ②H아파트 매수대금 중 실지급한 1억 900만 원은 피고의 I아파트 대출금 77,825,000원과 위 원고가 출연한 31,175,000원으로 조성되었는데, 피고의 주장과 같이 I아파트 대출금 중 2,300만 원을 피고의 위 원고에 대한 대여금으로 처리하면 위 원고의 투자금은 54,175,000원, 피고의 투자금은 54,825,000원이 되어 투자비율이 거의 50:50이 되는 점, ③위 원고가 I아파트 대출금에 대한 이자로 5회에 걸쳐 총 117만 원의 이자를 납부한 점(위 원고는 이 돈이 유이자 이주비에 대한 이자라고 주장하나, 아래에서 보는 바와 같이 이를 인정하기 부족하다) 등을 종합해 보면, 피고는 2005. 7. 15.경 원고 B과 사이에 위 원고가 피고로부터 I아파트 대출금 중 2,300만 원을 빌려 위 원고의 투자금을 출연하는 것으로 하고, 그에 대한 이자 역시 위 원고가 부담하기로 약정한 사실이 인정된다.

B) Meanwhile, according to the statements in Eul evidence Nos. 1, 2, and 4 (including each number), the plaintiff Eul and the defendant can recognize the fact that the defendant invested 77,825,00 won in I apartment mortgage loans in July 5, 2005 that he completed the registration of ownership transfer of H real estate on the front day of July 15, 2005. Thus, 19 million won that the above plaintiff should actually pay out of the purchase price (i.e., KRW 2.., KRW 249 million - interest- non-interest relocation expenses 40 million - interest relocation expenses 40,000 won - interest transfer expenses - 100,000 won - 200,000 won were paid out of the above account for the above 170,000 won account with no interest transfer period from August 16, 2005 to June 206, 2006.

C) However, according to the above facts, unlike the above agreement, the above Plaintiff paid the above loan amounting to KRW 23 million until the repayment of apartment loan amounting to KRW 3,555,23,000 and paid KRW 1.175,23,000,000, and did not pay the remainder of KRW 2,385,233.

D) In the case of damages for delay with respect to the above loan claim 23 million won, since there is no evidence to prove that an agreement was made on the due date, this constitutes a claim with no fixed deadline, and thus, there is an obvious damages for delay from July 11, 2012, which includes the Defendant’s expression of intent seeking repayment of the above loan, on July 4, 2012, a copy of the written reply dated 4, 2012, which was delivered to the said Plaintiff.

E) Therefore, the Defendant has a claim for the above loan amounting to KRW 23 million and interest equivalent to the above loan amounting to KRW 2,385,233, and damages for delay calculated by the rate of KRW 5% per annum under the Civil Act from July 11, 2012 to the date of full payment.

2) Claim amounting to KRW 50 million and interest equivalent thereto on December 18, 2007

A) As to the fact that the Defendant lent KRW 50 million out of K apartment loans to Plaintiff B on December 18, 2007, and agreed to pay interest thereon to the said Plaintiff, it is insufficient to recognize it solely on the basis of the outcome of the first instance court’s order to submit financial information to the new bank Han-dong branch, Korea, and there is no other evidence to acknowledge it.

B) However, the Defendant’s above assertion contains the purport of seeking the return of KRW 50 million from the new bank account of this case in which K apartment loans were deposited, to the new bank account of this case on December 20, 2007. In the event one member withdraws from two cooperatives, the claim against the withdrawing party of the association shall belong to the remaining person, and the remaining person may offset the claim against the refund of union property equivalent to the shares of the withdrawing party by using the automatic claim (see, e.g., Supreme Court Decision 2004Da49693, Mar. 9, 2006).

On the other hand, the instant union had a claim for return of unjust enrichment equivalent to KRW 50 million against the said Plaintiff. Thus, the said claim for return of unjust enrichment was reverted to the Defendant on March 18, 2013, which is the date of withdrawal of the said Plaintiff.

3) Claims equivalent to interest on H real estate loss and 40 million won in relocation expenses

A) If the purport of the entire argument is added to the statements in the evidence Nos. 5 and 6, even though the Plaintiff agreed with the Defendant to share half of the interest on the 40 million won of the paid interest of H real estate and the moving expenses, it is recognized that the Defendant paid only KRW 870,000 among the interest of KRW 3,706,774 up to May 3, 2007, the repayment date, and paid all the remainder.

B) Therefore, the above Plaintiff is obligated to pay KRW 925,322 to the Defendant out of KRW 983,387 calculated by deducting KRW 870,000,000 already paid from the interest amount (i.e., KRW 3,706,774 won/2) that it agreed to share.

4) Claim for return of the sales price of I apartment

A) On December 18, 2007, Plaintiff B received KRW 20 million out of the sales price of I apartment from the Defendant to use for taxes and various expenses related to the sale of I apartment. After using it for the above purpose, Plaintiff B left KRW 5,610,347, but did not return it to the Defendant. Since there is no dispute between the parties or it is recognized by the purport of the entire pleadings, the Defendant has the right to return KRW 5,610,347, the balance of the sales price to the said Plaintiff.

B) The above plaintiff asserted that he used the above balance to pay interest on K apartment loans for the defendant, but there is no evidence to acknowledge it.

(v) claims equivalent to interest in the amount of KRW 280 million for K apartment loans;

A) There is no dispute between the parties that the interest on the K apartment loans ought to be shared by both the Plaintiff B and the Defendant.

B) With respect to K apartment loans of KRW 280,000,000 from January 18, 2008 to March 18, 2014, which is the date of the loan, the following interest amounts to KRW 67,260,102 in total, the date of the loan from January 18, 2008 to March 18, 2014. Of them, the above Plaintiff’s payment of KRW 1,450,00,000, the Defendant’s payment of the remainder does not conflict between the parties, or the Defendant’s payment of the remainder does not dispute between the parties, and is recognized by adding the overall purport of the pleadings as stated in the evidence No.

(a) year 2008: 17,891,372 won;

(b) year 2009: 10,573,929 won;

(4) From January 2011 to November 2011: 9,914,648 won

(5) From December 2011 to March 18, 2013: 19,111,608 won (=21,159,281 won + X (280,000,000 / 310,000))

[The interest paid from 201, December 12 to March 18, 2013 includes KRW 30,000,000,000,000,000,000,000,000,000,000,000,000 won for personal loan. ＋ KRW 1,270,889,000 in December 2011 + KRW 15,369,053 in December 1, 2013 + KRW 3,76,116 in February 3, 206 + KRW 753,223 in March 75, 2013 (monthly 1,297,218, 18, 18,00/31) = 21,159,281 in December 201];

C) Therefore, the Defendant has a claim amounting to KRW 19,130,051, which is equivalent to KRW 33,630,051 (=67,260,102/2) calculated by deducting KRW 14,50,000 paid by the said Plaintiff from the above interest amount (=67,260,102/2).

6) Claim concerning K apartment as to the portion of the Plaintiff B’s share among the various costs incurred by the Defendant

With regard to the payment of interest on intermediate payment of the K apartment sales price of KRW 30,543,445 and delay damages of the remainder of the K apartment sales price of KRW 919,30 and KRW 12,79,850,000 at the time of the purchase of the K apartment and KRW 1,200,000,000 and KRW 12,79,050,000 as separate money from the investment amount that the Defendant recognized as above, it is insufficient to recognize the payment only by the descriptions of the evidence No. 10 and 11,

Rather, it was already recognized in paragraph (1) that interest 30,543,445 won for K apartment intermediate payment and damages for delay 919,330 won for remainder payment was paid from the new bank account of this case, which was deposited in KRW 17,700,000,000 for I apartment loan, as the money withdrawn on December 18, 2007.

In addition, the facts found in paragraph (1) are as follows: ① cancellation fee of KRW 157,79,861 out of the actual receipt amount of the sale of the right to sell a L apartment, KRW 800,000,000,000 for the former purchaser; KRW 1,400,000 for the sales of the right to sell the above and the defendant; KRW 1.3 million for the sales of the right to sell the K apartment; KRW 1.3 million for the sale of the right to sell the K apartment; KRW 47,360,00 for the remainder of KRW 1,199,861; ② The remainder of KRW 32,50,000 for the remainder of KRW 17,00,000 for the new bank account of KRW 2,80,000 for the loans of KRW 38,70,000,000 for the above 75,000,000 for the loans of KRW 971,394,504,500.

However, the evidence Nos. 2, 3, 25, 26, 27, 29, and 7, and evidence Nos. 7, and evidence Nos. 2,00,00 won transferred to the seller’s account at the time of purchase of the K Apartment, which is recognized by the witness J of the first instance trial, including the whole purport of the pleadings, and KRW 6,639,040, all of the expenses incurred by the said Plaintiff in the process of purchase of H apartment and registration tax as alleged by the Defendant, and KRW 12,79,850,000,000,0000, which is within the scope of the balance of the investment, and KRW 40,638,890, which is the brokerage fee claimed by the Defendant at the time of purchase of the right of sale, is likely to have been disbursed from the balance of the investment.

7) Loans of KRW 53.5 million against Defendant B

On November 3, 2007, the Defendant invested KRW 17 million in the new bank account of this case out of the purchase price of I Apartment. However, the Plaintiff B also spent KRW 50 million in the purchase of the K Apartment (the above 50 million sales profit can be included in the sales profit of the L Apartment, but the said profit shall not exceed KRW 50 million) and the Defendant made such a lease claim before the appellate court. In light of these circumstances, it is insufficient to view that the Defendant solely based on the above Defendant’s above disbursement as above, lent KRW 53,50,000,000 to B, which is a half of the above remittance amount, and there is no evidence to acknowledge otherwise.

8) Total amount of automatic bonds

Ultimately, the Defendant’s claim against the Plaintiff B as the counterclaim of offset amounting to KRW 101,841,774 [=a loan of KRW 23 million as of July 15, 2005 + interest of KRW 2,385,233 + delay damages of KRW 790,821 (from July 11, 2012, the day following the payment due date until March 18, 2013), + a claim for return of unjust enrichment amounting to KRW 50,000,000,000 withdrawn and used from the new bank account of this case + interest of KRW 925,322 on relocation expenses + interest of KRW 5,610,347 + interest of K apartment loans of KRW 130,051];

(b) Set-off and termination of each claim;

1) As seen earlier, among the Defendant’s automatic credit against Plaintiff B, the maturity period of KRW 23 million as of July 15, 2005 is July 10, 2012, and the remainder of the claims is a claim with no fixed deadline. Since the Defendant’s claim for settlement of accounts against the Defendant, which is a passive claim, was a claim with no fixed deadline set on March 18, 2013, the both claims were set off on the same day after the arrival of March 18, 2013.

2) Meanwhile, on the other hand, the Defendant’s automatic claim against the said Plaintiff, which included the Defendant’s declaration of intent to offset the above Plaintiff’s claim against the amount equal to the above Defendant’s claim for settlement of accounts against the said Plaintiff on April 2, 2013, which was served on the said Plaintiff on April 3, 2013, is apparent in the record, and thus, the Plaintiff’s claim for settlement of accounts amounting to KRW 140,509,702 retroactively from March 18, 2013, the set-off date, was extinguished within the scope equal to the above amount of KRW 101,841,74, which is the Defendant’s claim for each of the above claims against the said Plaintiff. The Defendant’s counterclaim is reasonable within the scope of recognition, and all of the counterclaim claims are without merit.

C. Sub-committee

Therefore, the Defendant is obligated to pay damages for delay calculated at an annual rate of 20% as stipulated in the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings from July 9, 2014, the following day after the delivery date of a copy of the claim and the application for modification of the cause of the claim, which is the date of July 10, 2014, which is the day following the delivery date of the copy of the claim as of July 10, 2014, the Defendant’s objection against the existence or scope of the obligation to perform the obligation, up to September 5, 2014, which is the date of the first instance judgment of this case, and five percent per annum as stipulated in the Civil Act, and twenty percent per annum as stipulated in the Civil Act, from the next day to the day of full payment.

6. Conclusion

Therefore, the plaintiff B's main claim is accepted within the scope of the above recognition, and the above plaintiff's main claim, the remaining main claim, and the defendant's counterclaim against the plaintiffs are dismissed as they are without merit. The judgment of the court of first instance is justified as it is consistent with this conclusion. Thus, the plaintiff B's appeal and the defendant's appeal are dismissed as they are without merit. It is so decided as per Disposition.