209 group 135687 Objection

Kim A (81 year olds, Females)

Attorney Lee Young-chul, Counsel for the plaintiff-appellant

Kim (60 years of birth, women)

[Defendant-Appellee] Plaintiff 1 and 3 others (Law Firm Jeong & Lee, Counsel for defendant-appellee)

June 18, 2010

July 9, 2010

1. The defendant's notary public against the plaintiff is not allowed to enforce compulsory execution based on the debt repayment contract notarial deed No. 2241 dated April 26, 2002, 202, 2002, which was executed by the defendant's notary public against the plaintiff, and compulsory execution based on the debt repayment contract notarial deed No. 1223 dated March 11, 2002, which was executed by the notary public with executory power of the 2002.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Facts of recognition;

A. The Plaintiff is the studio-gu proprietor, a studio-gu, the entertainment tavern located in Ulsan-gu, Ulsan-gu, and the Plaintiff served as female employees at the above studio-gu.

나. 원고는 2001.경 부산 범일동 소재 상호 불상의 유흥주점에서 선불금 1,300만 원을 받고 여종업원으로 근무하기 시작하였는데 이자, 벌금 등으로 선불금이 늘어나자 2002.2.경 울산 남구 삼산동 소재 유흥주점인 ◆룸살롱의 업주로부터 선불금 3,600만 원을 받고 그 곳에서 일하다가, 2002. 4. 26. 피고가 운영하는 룸살롱에 일을 하기로 하면서 피고로부터 선불금 3,800만 원을 받았다. 원고는 위 3,800만 원으로 룸살롱에 대한 선불금 3,600만 원을 갚고, 나머지 200만 원은 거주할 방을 구하는 등 생활비로 사용하였다.

C. On the other hand, on April 26, 2002, the plaintiff prepared a notarial deed of debt repayment contract No. 2241 on October 26, 2002 between the defendant and the principal amount of KRW 38 million, interest rate of KRW 60% per annum, and due date of payment of October 26, 2002.

라. 원고는 김C와 2002.2.경부터 위 ◆룸살롱에서 근무하였는데 김C가 ◇룸살롱으로 옮기면서 보증을 부탁하여, 2002. 3. 11. 주채무자 김C, 원금 3,200만 원, 이자 연60%, 변제기 2002. 9. 11.로 된 공증인가 법무법인 정우의 2002년 증서 제1223호 채무변제계약공정증서에 연대보증인이 되었다.

E. From April 26, 2002 to May 3, 2002, the Plaintiff worked respectively from March 11, 2002 to May 3, 2002, and from March 11, 2002 to May 2002, the operation of studal harassment was operated in the form of female employees by deducting the 200,000 won from the studio to the studio, the female employees are in the studio, the customers are in the studio, the customers are in the studio, and there is no other service fee per hour, and the customers are in the studio and 50,000 won from the studio to the 50,000 won from the studio to the studio.

F. While working in studio-gu, the Plaintiff did not work from May 4, 2002 due to the Plaintiff’s lack of health, such as continuous production of a studio, etc.

[Ground of recognition] The written evidence Nos. 1 through 5, the result of the Plaintiff’s personal examination, the purport of the whole pleadings

2. The plaintiff's assertion and judgment

A. The plaintiff's assertion

The plaintiff asserts that since each obligation based on the debt repayment contract of the plaintiff or KimC was provided as a prepaid payment related to the sexual traffic of the plaintiff or KimC, each of the above loans can not be claimed pursuant to Article 103 of the Civil Code and Article 20 of the former Act on the Prevention of Prostitution, etc. (amended by Act No. 7196, Mar. 22, 2004; hereinafter "former Act on the Prevention of Prostitution, etc.") under Article 20 of the former Act on the Prevention of Prostitution, etc. (amended by Act No. 7196, Mar. 22, 2004; hereinafter "former Act on the Prevention of Prostitution, etc."). Therefore, the defendant's compulsory execution based on each of

B. Determination

(1) Article 103 of the Civil Act provides that "a juristic act of anti-social order shall be null and void." Article 20 of the former Prevention of Prostitution, etc. Act provides that "a claim held by a person who, for profit, commits an act as provided in subparagraphs 3 through 5 of Article 4 or a person who cooperates with him/her against a person who, for profit, commits an act of prostitution shall be null and void regardless of the form of the contract, regardless of the form of the contract." Article 4 of the Civil Act provides that "act of soliciting, inducing, arranging, or forcing another person to do so, or soliciting, induce, mediate, or compelling another person to do so, or compelling another person to do so, to do so" as provided in subparagraph 3 of Article 4 of the same Act, "act of providing a place for prostitution" as provided in subparagraph 4, and "act of demanding, demanding, or promising another person to receive money, valuables, or other property benefits from a person who has engaged in a prostitution or a person who has engaged in a prostitution."

(2) According to the provisions of this Act, it is in violation of good customs and other social order to encourage, induce, induce, mediate, or compel a person to engage in a prostitution for profit-making purposes, or provide a place for, or cooperate in, the act of prostitution. Thus, a claim held by a person who engaged in such act against a person who has a business-related prostitution shall be deemed null and void regardless of the form of a contract (see, e.g., Supreme Court Decisions 2004Da27488, 27495, Sept. 3, 2004; 2004Da21688, Sept. 3, 2004).

(3) 그러므로 이 사건으로 돌아와 보건대, 갑4호증 내지 갑9호증(각 가지번호 포함)의 각 기재에 변론 전체의 취지를 더하여 인정되거나 그로부터 추단되는 다음과 같은 사정 즉, ① 원고와 김C는 그 전 근무업소인 ◆룸살롱에 대한 선불금을 변제하기 위해 이 사건 각 차용에 이르렀고 이 사건 각 차용 이후 피고가 운영하는 룸살롱에 근무하면서 성매매 (윤락행위)를 강요받았던 점, ② 원고와 김C의 근무 당시 룸살롱의 운영형태에 비추어 볼 때 성매매를 통한 수입이 없이는 이 사건 각 차용금과 연 60%에 이르는 고율의 이자를 변제하는 것이 사실상 불가능한 것으로 보이는 점, ③ 실제로 원고와 김C는 위 룸살롱 등의 유흥주점에 근무하면서 성매매를 하였던 점, ④ 원고와 김C는 위와 같이 피고로부터 돈을 차용하여 그 전에 근무한 성매매업소인 ◆룸 살롱의 업주에 대한 선불금을 변제하였고 그와 같은 사정을 피고도 알고 있었던 점 등에 비추어 볼 때, 위 각 차용금은 원고와 김C가 룸살롱 등에 근무하며 윤락행위를 하도록 유인, 강요하는 수단으로 사용되었다 할 것이다.

Therefore, the Plaintiff’s respective obligations against the Defendant based on the instant debt repayment contract and joint and several sureties contract are null and void in violation of Article 103 of the Civil Act and Article 20 of the former Prevention of Prostitution, etc. Act. Therefore, the Plaintiff is not obliged to repay the respective loans to the Defendant, who is the obligee under the instant debt repayment contract and joint and

(4) As to this, the defendant asserts that the plaintiff and KimC promised to pay the above borrowed money from the defendant while working in studal harassment, the plaintiff borrowed money only one week from the defendant, and KimC got back to about two months from the loan of money, and in light of these circumstances, the plaintiff and KimC shall be deemed to have taken over the above borrowed money by deceiving the defendant even though they did not have the intention to pay the borrowed money from the beginning, and thus, they shall have paid the borrowed money. Accordingly, it is acknowledged that the plaintiff was indicted for the suspicion of receiving the borrowed money from the defendant and the judgment became final and conclusive after having been sentenced to a suspended sentence of two years from imprisonment for eight months from the Busan District Court (No. 2004No1239) on January 7, 2005.

However, according to Article 746 of the Civil Act, if the benefit constitutes illegal consideration and there is an illegal cause to the provider, the beneficiary may not seek the return of the illegal consideration, regardless of whether there is an illegal cause, or whether the degree of the illegal cause of the beneficiary or the illegality of the beneficiary is larger than that of the provider. However, if the illegality of the beneficiary is significantly larger than that of the provider, and if the illegality of the provider is weak, the provider is excluded from the application of the main sentence of Article 746 of the Civil Act under the principle of equity and good faith, and thus the provider’s claim for return is allowed (see Supreme Court Decision 95Da49530, 49547, Oct. 24, 1997). In this case, there is no evidence to deem that the illegality of the Plaintiff and KimC is more larger than that of the Defendant’s illegal cause than that of the provider, and the defendant’s assertion that the illegality of the beneficiary is greater is not accepted (as a result of each evidence found above).

3. Conclusion

Therefore, the plaintiff's claim of this case is justified and it is so decided as per Disposition by the assent of all.

Judges Kim Jae-soo