2016Da20909 Preemptives

Appellant

Dompoon Dompoon Cooperatives

Appellee

A Stock Company

Seoul High Court Decision 2015Na17069 Decided April 21, 2016

August 30, 2016

The part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the Seoul High Court. The Plaintiff’s supplementary appeal is dismissed.

The grounds of appeal are examined.

1. As to the Plaintiff’s grounds of incidental appeal

A. As to the assertion on each of the loans as of February 28, 2012 and May 12, 2014, the lower court acknowledged that the Defendant loaned KRW 100 million to B on February 28, 2012 and May 12, 2014 by taking account of the adopted evidence, and rejected this determination on the ground that the evidence submitted by the Plaintiff was insufficient to recognize that the household checks issued by B were issued as a collateral for each of the above loans and were settled as a repayment of each of the above loans.

Examining the reasoning of the lower judgment in light of the record, the lower court’s aforementioned determination is justifiable, and contrary to what is alleged in the grounds of appeal, the lower court did not err by failing to exhaust all necessary deliberations and exceeding the bounds of the principle

B. As to the assertion regarding loans as of May 27, 2014, the lower court determined that the Defendant could have acknowledged the fact that the Defendant lent KRW 20 million to B on May 27, 2014, by integrating the adopted evidence.

Examining the reasoning of the lower judgment in light of the record, the lower court’s aforementioned determination is justifiable, and contrary to what is alleged in the grounds of appeal, the lower court did not err by failing to exhaust all necessary deliberations and exceeding the bounds of the principle

2. As to the Defendant’s ground of appeal

A. According to the reasoning of the lower judgment, the lower court determined as follows: (a) around December 3, 2015, which was served on the Plaintiff on December 3, 2015 on the day when both the Plaintiff and the Defendant’s two claims were due and due, was set off in the instant case, including the Defendant’s expression of intent of set-off.

B. However, the lower court’s determination is difficult to accept for the following reasons.

Article 492(1) of the Civil Act provides that "when the obligation has become due" refers to the time when the obligee is entitled to a claim for performance to the obligor, and it does not refer to the time when the obligor is forced to delay performance (see Supreme Court Decision 81Meu10, Dec. 12, 1981). Therefore, in the event of an obligation for which the due date is not fixed, the obligee may claim performance at any time, and therefore, it is reasonable to deem that the due date has arrived at the same time as the establishment of the obligation.

According to the reasoning of the lower judgment and the record, since each of the claims against the Defendant B, an automatic bond, was due and due, it shall be deemed that the obligation for the loan was due and due, and on the other hand, the instant claim for the transfer money, which is a passive bond, was the livestock product payment claim that was supplied to the Defendant from around 2008 to May 24, 2014, and there is no evidence to prove that the due date was due and due, it is reasonable to deem that the due date for the transfer money obligation for livestock products was due and due and due and payable around May 24

Therefore, the Plaintiff’s claim of KRW 100 million as of February 28, 2012 and May 12, 2014 and the Plaintiff’s claim of KRW 100 million were set-off upon the arrival of both claims on May 24, 2014. As such, the Plaintiff’s claim of KRW 238,155,469 retroactively from the time of the set-off and became extinct from the total amount of the Defendant’s claim of KRW 200 million. The remainder of the claim of KRW 38,15,469 = (238,15,469 - 200,000,000) and the Defendant’s claim of KRW 20,000,000 as of May 27, 2014 and the remainder of the claim of KRW 50,000,000 were retroactively set-off at the time of the aforementioned set-off.

Nevertheless, as indicated in its reasoning, the lower court determined that both claims were set off on December 3, 2015, which were delivered to the Plaintiff on December 1, 2015, including the Defendant’s expression of intent of set-off, and were in set-off. In so doing, the lower court erred by misapprehending the legal doctrine on set-off, thereby adversely affecting the conclusion of the judgment. The allegation contained in the grounds of appeal on this point is with merit.

3. Conclusion

Therefore, the part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. The Plaintiff’s supplementary appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Young-young

Justices Park Byung-hee

Justices Kim Jae-han

Chief Justice Kim Jong-il