Plaintiff

Defendant (Attorney Park Tae-won, Counsel for the defendant-appellant)

September 3, 2013

Seoul Northern District Court Decision 2012Gahap3221 Decided October 12, 2012

1. The part concerning the conjunctive claim in the first instance judgment shall be revoked.

2. The plaintiff's conjunctive claim is dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

The purport of the claim: The defendant shall pay to the plaintiff the amount of KRW 100,000,000 as well as 5% per annum from November 14, 2004 to March 16, 2012, and 20% per annum from the following day to the date of full payment.

The purport of appeal: The provisions of paragraphs (1) and (2) of this Article.

1. Scope of the deliberation of the political party;

After the first instance court consolidated the main claim for the loan and the conjunctive claim for damages, only the defendant appealed against the dismissal of the main claim and the judgment citing only the conjunctive claim. Thus, the effect of the first instance court's appeal is naturally limited to the whole case and the part concerning the main claim is also remanded to the appellate court. However, the scope of the appellate court's trial is limited to the legitimacy of the first instance court's judgment accepting the conjunctive claim. Thus, in this case without the plaintiff's incidental appeal, the subject of the judgment is limited to the conjunctive claim (see Supreme Court Decision 2002Meu852 delivered on December 26, 2002, etc.).

2. Judgment on the conjunctive claim

A. The plaintiff's assertion

The defendant states that "the plaintiff would pay 100 million won to the defendant and return it to the non-party including the above 100 million won by purchasing, selling, and return it with the non-party's profit." If the plaintiff gives money to the defendant, the defendant thought that he would pay the money to the non-party, and paid KRW 100 million to the defendant, but the defendant used the money differently from the defendant's expression to the plaintiff. Since the plaintiff's deception was made by the defendant, the defendant is liable for damages of KRW 100 million.

(b) Fact of recognition;

1) The Nonparty, who operated ○○○○○○○○ in the production, supply, and sale of clothes, traded with the Defendant from around September 2004 by selling the goods of leather from the Defendant’s sales place to the sales place. In ordinary, the Defendant purchased the goods of leather with his own money and supplied them to the Nonparty, and then claimed for the payment to the Nonparty by adding profit therefrom.

2) The Nonparty listened to the horses requesting the supply of 2,00 points of leather products from Japanese customers, and requested the Defendant to deliver 2,00 points of leather products.

3) In order to seek KRW 100,000 for the purchase price of 2,00 of leather Products, the Defendant stated to the Plaintiff that “The Plaintiff would return KRW 100,000,000,000 to KRW 220,000,000,000,000,000,000 after one week per week per week for the purchase of Bashes products.”

4) The Plaintiff deposited KRW 10 million on November 3, 2004, and KRW 12.5 million on November 6, 2004, respectively, with the Defendant’s new bank account. On November 4, 2004, the Plaintiff issued a check of KRW 77.5 million to the Defendant, and paid the Defendant a total of KRW 100 million to the Defendant. The Defendant purchased and supplied the said goods to the Nonparty. At the time of purchasing the goods of leather, the Nonparty selected the goods accompanied with the Defendant.

5) The Nonparty was unable to deliver this to the customer of Japan due to the defect in the above household goods supplied by the Defendant, and the Nonparty decided to dispose of the goods by way of domestic consignment sale and direct sales.

6) However, the Nonparty failed to pay the price for the goods to the Defendant because the sales of the said leather products was not well performed. Upon receiving the Plaintiff’s demand for return of money from the Plaintiff, the Defendant received a cash custody certificate from the Nonparty and transferred the said certificate to the Plaintiff.

[Ground of recognition] Unsatisfy, Gap evidence 1, Eul evidence 6-1 through 3, Eul evidence 3, 9, and 4-3, the non-party witness of the trial and the purport of the whole pleadings

C. Determination

The evidence submitted by the Plaintiff alone is insufficient to recognize that the Defendant had engaged in the act of deception as alleged by the Plaintiff, and there is no other evidence to acknowledge this otherwise. Rather, the Plaintiff stated in this court that “If the Defendant had lent KRW 100 million to the Plaintiff, he would have paid KRW 20 million after one week, he would have paid KRW 120 million to the Nonparty, and there would not be any statement that he would have paid or would not have paid money to the Nonparty.” The above facts and the following facts revealed therefrom are as follows: (i) the Nonparty would have received the goods of leather from the Defendant in the previous transaction with the Defendant, and (ii) the Nonparty would have received the goods of leather and did not receive money, and (iii) the Defendant would have received money from the Nonparty after receiving KRW 100 million from the Plaintiff, and it is difficult to deem that the Defendant actually supplied the goods to the Nonparty, as alleged by the Defendant, and that the Defendant had actually supplied the goods to the Plaintiff.

As alleged by the Plaintiff, if the Plaintiff paid the money to the Defendant, the Defendant provided the Nonparty with the money to the Nonparty, and the Defendant actually thought that the Nonparty would live in the household goods. However, even if the Defendant purchased the household goods with the money paid by the Plaintiff and delivered the said goods to the Nonparty, the Defendant appears to have obtained the Plaintiff on the ground that the Nonparty would be able to take a big profit from the purchase of the household goods with the money paid by the Nonparty to the Nonparty. As long as the Defendant actually purchased the household goods with the money actually received from the Plaintiff and delivered the said goods to the Nonparty, it cannot be said that there was a substantial difference between the Nonparty and the Defendant’s purchase of the household goods by accompanying the Nonparty and the Defendant’s delivery of the household goods to the Nonparty. Therefore, it cannot be said that there was an unlawful deception.

Therefore, the plaintiff's claim is without merit.

3. Conclusion

Therefore, the plaintiff's conjunctive claim is dismissed as it is without merit, and the judgment of the court of first instance is unfair with different conclusions, and it is revoked, and the plaintiff's conjunctive claim is dismissed. It is so decided as per Disposition.

Judges Lee Dong-won (Presiding Judge)