St Co., Ltd. (Attorney Lee Ho-ho, Counsel for the plaintiff-appellant)

Defendant 1 and one other (Law Firm Masan et al., Counsel for the defendant-appellant)

July 7, 2010

Seoul Central District Court Decision 2009Kahap35694 Decided January 28, 2010

1. All appeals by the Defendants are dismissed.

2. The costs of appeal are assessed against the Defendants.

Purport of claim

The plaintiff is jointly and severally with the co-defendant 290,266,710 won and 200,000,000 won among them from November 17, 2006 to the date of final delivery of a copy of the complaint of this case, 20% per annum from the next day to the date of full payment, 30% per annum from July 19, 2007 to the date of full payment, and 20,266,710 won per annum from July 19, 207 to the date of full payment, Defendant Mick Co-defendant 2, Co-defendant 2, 290,266,710 won, and 20,000,000 won per annum from the next day to the date of full payment, and 20,000,000 won per annum from the date of full payment to the date of full payment, and 30% per annum from the date of full payment to the date of full payment.

Purport of appeal

The part of the judgment of the first instance against the Defendants shall be revoked. The Plaintiff’s claim against the Defendants shall be dismissed in entirety.

1. Basic facts

A. Co-Defendant 2 of the first instance trial (hereinafter “Defendant 2”) was the actual operator of the New Corer channel Co-Defendant 2, Ltd. (hereinafter “New Corer channel”) in the first instance trial. On December 28, 2007, Defendant 1 was the chief of the headquarters of the Marerer Co-Defendant 2 (hereinafter “Defendant Master”).

B. Although Defendant 2 and Defendant 1 conspired to enter into a contract for the exclusive sale of the wheel bridge board between Defendant 2 and Defendant Mazers, the exclusive sales contract with the content that Defendant Mazers would be supplied with the Mazer’s revolving bridge board from new connection channel and deliver it to home shopping ( Defendant 1, around November 2006, entered the exclusive sales contract into a computer and printed out it in a computer, affixed the name tag of Defendant Mazer’s representative director at the insurance business team of Defendant Mazer, affixed the official seal of the representative director at Defendant Mazer’s insurance business team, and sent it by facsimile to the Plaintiff by facsimile) and the order sheet (Defendant 1, on January 15, 2007, prepared an order sheet with the content that Defendant Mazer’s order was issued at KRW 8,350,2900,000, and then, the following third party’s seal was forged and sealed.)

C. Accordingly, on November 17, 2006, the Plaintiff in fact lent KRW 200 million to Defendant 2’s new connection channels under Defendant 2’s joint and several guarantee to enter into a formal commodity supply contract with the new connection channel (hereinafter “first loan”), and again, on January 16, 2007, lent KRW 200 million to be paid for the price of goods on the said order sheet (hereinafter “second loan”).

D. On May 9, 2007, Defendant 2 and 1 agreed to pay to the Plaintiff the interest of KRW 242,150,000 per day (i.e., the total amount of the delivery price indicated in the above order (i.e., the total amount of KRW 8,350 x 29,000)) and KRW 1,50,000 per day until May 29, 2007 (hereinafter “instant repayment agreement”).

[Reasons for Recognition] Facts without dispute, Gap evidence 1, 2, 4, 5-1, 6-2, 7, 9, 10, and the purport of the whole pleadings and arguments

2. Determination as to the claim against Defendant 1

A. Defendant 1’s responsibility

According to the above facts of recognition, Defendant 1 is an illegal act with respect to the first lending, and as to the second lending, Defendant 1 is each liable as the instant repayment agreement.

Although Defendant 1 asserted that the instant reimbursement agreement was concluded by the Plaintiff’s coercion, it is not sufficient to recognize it solely with the statement of No. 6, and there is no other evidence to acknowledge it.

Defendant 1 asserted that the interest of the instant repayment agreement ought to be invalidated or reduced as an estimate for damages under Article 103(b) or Article 104 of the Civil Act. However, Defendant 1 sought payment by reducing the rate of 30% per annum, which appears to be within the pertinent scope, and thus, the above assertion is rejected.

B. Partial repayment

With respect to the instant repayment agreement, the Plaintiff is a person who was paid KRW 95,00,00 on May 30, 2007 from Defendant 1 to KRW 52,876,00,00 on June 19, 2007, KRW 15,680,00 on June 19, 2007, and KRW 95,000,000 on July 18, 2007 (the discount amount of KRW 92,00,000 + cash + KRW 3,00,000). As the Plaintiff’s claim, interest or delay damages at the rate of KRW 30% per annum under the Interest Limitation Act, and KRW 242,150,00 on the agreed principal amount of KRW 242,150,00 on July 18, 207, the principal or delay damages up to KRW 151,83,290 on July 16, 2007.

3. Determination as to the claim against Defendant Magazers

(a) Occurrence of liability for damages;

According to the above facts, Defendant 1, the director of the special sales division of Defendant Mers, recommended to forge the exclusive sales contract and lend money to a third party by using the seal imprint of Defendant Mers, which was kept in the process of performing the duties of receiving orders and ordering orders, using the seal imprint of Defendant Mers. As such, Defendant Mers is an employer of Defendant 1, and is jointly and severally liable with Defendant 2, new connection channel, and Defendant 1 to compensate for the damages incurred therefrom.

As to this, Defendant Master asserts that Defendant Master did not assume employer liability because the Plaintiff was grossly negligent in not knowing that Defendant Master’s act does not constitute the execution of normal duties. However, in light of the fact that Defendant 1 was the director of Defendant Master’s specialty and the official seal, etc. of Defendant Master’s representative director was affixed on the exclusive contract presented by him, it is difficult to recognize that Defendant Master’s negligence exists on the sole basis of the evidence that Defendant Master’s internal duty was gross negligence on the part of the Plaintiff.

B. Limitation on liability

However, in full view of the overall purport of the statements and arguments set forth in Gap evidence Nos. 9, 10, and Eul evidence No. 9, the plaintiff also lent 400 million won in total to new connection channels, and the plaintiff did not confirm whether the revolving bridge plate was actually produced, financial situation, product production ability, etc., and even in relation to the fact of the exclusive sales contract between the defendant master and new connection channel, the defendant 1 received the exclusive sales contract (Evidence No. 2) from the defendant 1 as a copy by facsimile and the representative director's official seal on the ordering document (Evidence No. 4) is not a defendant master, but a third party who is not a defendant master, without comparing or accurately verifying the official seal of the representative director on the order document (Evidence No. 4) with the certificate of seal impression No. 50% (the ratio of the defendant master's liability).

C. Exemption from liability due to partial performance by Defendant 1

In relation to the second lease, Defendant 1’s liability for damages arising from the employer’s liability of Defendant Mickers and the obligation of this case’s repayment agreement shall be deemed to be the so-called quasi-joint and several liability relationship in which the other party’s obligation ceases to exist if one of the obligations becomes extinct due to repayment, etc. with respect to the independent obligation arising from separate causes or the obligation having the same economic purpose. In light of the purport of the quasi-joint and several liability system that seeks to secure the intent of the parties and the full amount of the obligation, where part of the other obligation is extinguished due to repayment, etc., the first extinguished obligation should be deemed to be not the obligation jointly and severally assumed with other obligors, but the obligation solely assumed with the other obligor (see, e.g., Supreme Court Decisions 9Da50521, Nov. 23, 199; 9Da63776, Mar. 14, 200).

As seen earlier, the Defendant’s liability for damages with respect to the secondary loan amount is KRW 100 million (20 million x 50%). Separately, Defendant 1 was liable with interest or delay damages at the rate of 30% per annum from May 9, 2007 to the date of full payment. However, if Defendant 1’s repayment was appropriated for the portion of Defendant 1’s sole obligation, the portion exceeding KRW 100 million out of the interest and principal amount is entirely appropriated for the entire portion and extinguished [the principal amount is KRW 151,83,290, KRW 142,150,00 (242,150,000 - KRW 150,000) under the instant repayment agreement, and the remaining amount is extinguished by Defendant 1’s joint obligation amount of KRW 142,150,00,000 (242,150,000 - KRW 931,297,319,298).

3. Conclusion

Therefore, Defendant 1 is jointly and severally with Defendant 2 to pay 290,266,710 won and 200,000 won for damages related to the first lease from November 17, 2006 to the date of tort; 5% per annum from January 28, 2010 to the date of full payment; 90,266,710 won per annum from July 19, 207 to the date of full payment; 30% per annum from the date of full payment; Defendant 1 is jointly and severally with Defendant 2, New Kercers; Defendant 1 is jointly and severally with Defendant 1 to the date of full payment; Defendant 1 is liable to pay 10,000,000 won for damages related to the first lease; and Defendant 1 is jointly and severally with Defendant 1 to the date of full payment; Defendant 201,000,000 won per annum from the date of appeal to the date of full payment; and Defendant 201,017.27.

Judge Lee Young-young (Presiding Judge)