Plaintiff (Counterclaim Defendant) 1 and two others (Attorney Lee Dong-soo, Counsel for the plaintiff-appellant)

Defendant-Counterclaim Plaintiff (Attorney Lee Jae-hwan, Counsel for plaintiff-appellant)

August 22, 2019

Incheon District Court Decision 2017Gahap54028, 2018Gahap58232 decided August 31, 2018

1. The decision of the first instance (other than the portion invalidated by the withdrawal of action by this court), including a claim added by this court, shall be amended as follows:

A. The Plaintiff (Counterclaim Defendant) 1, Plaintiff (Counterclaim Defendant 2), and Plaintiff (Counterclaim Defendant 2) 24,846,187 won, respectively, and Plaintiff (Counterclaim Defendant 3) 3,170,845 won and the annual interest rate of 5% from July 26, 2018 to November 14, 2019, and the annual interest rate of 15% from the next day to the date of full payment.

B. All of the Plaintiff-Counterclaim Defendant’s principal claim and the remainder of the Defendant-Counterclaim Plaintiff’s counterclaim are dismissed.

2. The total costs of the lawsuit shall be borne by the Plaintiff (Counterclaim Defendant) and the remainder by the Defendant (Counterclaim Plaintiff) respectively.

3. The above paragraph 1(a) may be provisionally executed.

1. Purport of claim

(a) Main claim;

The Defendant (Counterclaim Plaintiff; hereinafter “Defendant”) paid 12,857,00 won per annum to the Plaintiff (Counterclaim Defendant; hereinafter “Plaintiff”) and 22,857,00 won per annum from September 1, 2012 to the date of delivery of the copy of the instant complaint; 5% per annum from the next day to the date of full payment; 5% per annum from the date of delivery of the copy of the instant complaint to the date of full payment; 5% per annum from the date of delivery of the copy of the instant complaint to the date of full payment; 5% per annum from the next day to the date of delivery of the copy of the instant complaint to the date of full payment; 10,000 won per annum from the next day to the date of full payment; 20% per annum from the next day to the date of full payment; 30% per annum from the date of each of the instant complaint to the date of full payment; 30% per annum from the date of delivery to the date of full payment; 30% per annum to 15.

(b) Counterclaim;

With respect to KRW 257,335,686 and KRW 152,437,129 of each of the plaintiffs 1 and 2, as to the defendant, 5% per annum from June 11, 2012 to the delivery date of the duplicate of each of the counterclaims in this case, from November 21, 2016 to the delivery date of the duplicate of each of the counterclaims in this case, and 15% per annum from the next day to the full payment date; ② from June 11, 2012 to KRW 386,03,528 of the plaintiff 3 and KRW 228,65,693 of the above, the part of the conjunctive claim was modified from June 11, 2012 to KRW 157,347,835 of the above, and the part of the conjunctive claim was modified to the extent that the two of the conjunctive claims were made to be paid with 35% per annum of the total costs in this case as stated below.

2. Purport of appeal

A. The plaintiffs

1) The part concerning the principal lawsuit in the judgment of the first instance is revoked. The same is as stated in the purport of the principal lawsuit (the part concerning the claim for payment of deposit and the claim for notification of transfer in the judgment of the first instance became null and void due to the Plaintiff’

2) Of the part concerning the counterclaim in the judgment of the court of first instance, the part against the plaintiffs among the part concerning the counterclaim in the judgment of the court of first instance is revoked and all the defendant'

B. Defendant

The part concerning the counterclaim in the judgment of the court of first instance shall be modified as follows. The part concerning the counterclaim in the judgment of the court of first instance shall be modified. The defendant, the plaintiff 2, the plaintiff 3, the plaintiff 3, the plaintiff 3, the plaintiff 374,190,986 won, and each of them shall pay 15% interest per annum from the day after the copy of the counterclaim in this case is served to the day of full payment.

1. Basic facts

This part of the judgment of the court is identical to the reasoning of the judgment of the court of first instance, and thus, citing the reasoning of the judgment by the main text of Article 420 of the Civil Procedure Act (hereinafter in this case, the same shall apply).

2. Judgment on the plaintiffs' main claim

A. The part on the claim for restitution of unjust enrichment regarding the lease deposit and rent under the instant lease agreement

1) Summary of the parties’ assertion

The plaintiffs asserted that since the plaintiff unjust enrichment of KRW 80 million and KRW 315 million not paid to the deceased among the lease deposit received from the tenant under the lease agreement of this case as a person who was entrusted with the name on the land and building of this case from the deceased, the plaintiff should pay the above amount and delay damages to the plaintiffs. Accordingly, the defendant asserts that since the deceased donated the land and building of this case to the defendant, it is not obligated to return the above lease deposit and the rent to the plaintiffs, and even if not, the above lease deposit amount was paid KRW 30 million as operating expenses of the private teaching institute of this case out of the balance of the above lease deposit amount of KRW 80 million are returned to the plaintiffs.

2) Reversion of the above lease deposit and the rent

The reasoning of this part of the judgment of the court is as follows: (a) the 7th 8th 8 of the grounds of the judgment of the court of first instance is as follows: (b) the 8th 6th 6 of the 7th 7th 7th 8 of the above-mentioned facts are stated.

3) Scope of the Defendant’s obligation to return unjust enrichment

A) Comprehensively taking account of the overall purport of the arguments in the evidence evidence evidence evidence Nos. 30, 13, and 14, the Defendant received KRW 50 million from the lessee on April 2, 2012 among the lease deposit deposit KRW 300 million, and the remainder KRW 250 million on May 22, 2012, and paid KRW 200 million to the Deceased on May 23, 2012. The Defendant is recognized to have received KRW 315 million in total from the lessee from the lessee to February 2, 2014, excluding KRW 150 million in value-added tax (excluding KRW 1,500,000) x KRW 250 million in total from the lessee to February 3, 2014).

Therefore, barring any special circumstance, the Defendant, as a return of unjust enrichment, is obligated to pay the Plaintiff, who is the inheritor of the deceased, the sum of KRW 100 million for the leased deposit money (i.e., KRW 30 million - KRW 200 million) the Plaintiffs seek from the deceased (i.e., the amount of KRW 100 million used by the deceased for borrowing, etc. from the Defendant) and KRW 315 million for the above rent, and damages for delay.

B) (1) Meanwhile, according to each of the above evidence, the Defendant transferred KRW 10 million as of April 2, 2012 to the account (Account Number 2 omitted) in the Defendant’s name after receiving the lease deposit amount of KRW 300 million from the receipt account to the account (Account Number 2 omitted) of the Nonghyup Bank in the Defendant’s name (Account Number 3 B), and KRW 5 million as of April 6, 2012, respectively. The Defendant transferred KRW 150 million as of April 16, 2012 and KRW 1.5 million as of April 23, 2012, separately from the account in the above account in the name of Nonparty 2’s new bank account in the name of the Defendant’s management (Account Number 3 omitted), and the Defendant received KRW 3 million as of April 25, 2012 for the remaining purpose of the account in the name of the Defendant’s bank’s receipt of the deposit money and KRW 1.5 million from the account in the above case.

(2) However, the circumstances acknowledged by each of the above evidence (i.e., the Defendant’s account is an account used for the Defendant’s personal living expenses on the Defendant’s own name. Considering the fact that (i) the balance was already deposited at the time of April 2, 2012 as the down payment of KRW 50 million, and (ii) the said down payment was mixed with the existing balance that was deposited, and (iii) KRW 26,792,534 was insufficient to conclude that the balance was KRW 23,207,46 and KRW 10 million was transferred to the Defendant’s private teaching institute B; (iv) the Defendant’s account was transferred to KRW 205 million on April 6, 2012 as the down payment of KRW 200 + KRW 2500,000,000,0000,000,0000,000,000 won was deposited at KRW 1.25 million on the Defendant’s account.

(3) Furthermore, as seen in the above lease deposit from March 3 (b) to the Defendant’s account, a considerable amount of money for a period of time is transferred from the Defendant’s account for the management purpose of the instant private teaching institute to the Defendant’s personal purpose account in accordance with the Defendant’s classification. Of such a series of transactions, it is found that the more detailed amount of money deposited from the Defendant’s account for the management purpose of the instant private teaching institute is not verified, and the said bank account, which is or was managed by the Defendant, is not strictly distinguishable from the Defendant’s personal purpose.

(4) Therefore, in full view of these circumstances, it is difficult to readily conclude that the Defendant’s transfer of KRW 30 million out of the leased deposit received by the Defendant to the bank account used for the operation of the instant private teaching institute after the receipt of the leased deposit with the personal purpose account, and solely on the ground that it was used for the purpose of the operation of the instant private teaching institute, the Defendant’s assertion cannot be accepted, since there is no other evidence to acknowledge it.

B. The part claiming the refund of interest on the deposit money

The Plaintiffs asserted that the Defendant is obligated to pay interest calculated at the rate of 4.9% per annum, calculated by deducting 0.1% per annum of the deposit interest rate as stipulated in Article 2 of the former Rules on Interest on Deposit from the date of deposit to the date when the Defendant expressed his/her intent to transfer the right to claim payment of deposit money pursuant to Article 748(2) of the Civil Act, as a malicious beneficiary with bad faith for the lessee’s right to claim payment of deposit money as stated in the separate sheet No. 1, as stated in the instant lease agreement (amended by Supreme Court Regulation No. 2790, May 29, 2018 and enforced as of July 1, 2018).

According to the above, since the rent under the instant lease agreement ought to be attributed to the deceased, the Defendant was obligated to return as unjust enrichment the Defendant’s right to claim payment of deposit money due to the lessee’s deposit of rent. According to each of the above evidence, the first instance judgment ordering the transfer of the right to claim payment of deposit money, and the Plaintiffs are recognized to have received the deposit money on August 7, 2019 due to the Defendant’s voluntary performance.

Article 748(2) of the Civil Act provides that in return of unjust enrichment, a malicious beneficiary shall return the received interest with interest added thereto. However, this purport is that in cases of returning money (value) that can serve as the basis of calculation of interest, the return shall be made with interest added thereto, and it is difficult to interpret that even in cases of return of original property, the return shall be made with interest added thereto.

Therefore, when the defendant returns the above right to claim payment of deposit money to the plaintiffs as unjust enrichment, it cannot be deemed that the defendant has a duty to return the amount equivalent to the deposit money with interest equivalent to the above assertion. Therefore, the above assertion by the plaintiffs is without merit without further review.

C. Sub-committee

Therefore, barring any special circumstance, the defendant is obligated to pay interest and delay damages calculated at the rate of 5% per annum under the Civil Act from May 22, 2017, which is the delivery date of a copy of the main complaint of this case filed by the defendant, to November 14, 2019, which is the delivery date of a copy of the main complaint of this case until November 14, 2019, and 15% per annum under the Act on Special Cases concerning Expedition, etc. of Legal Proceedings from the following day to the day of full payment.

3. Determination as to the defendant's counterclaim and the claim for offset

A. The defendant's argument

The plaintiffs shall pay to the defendant 1,265,674,90 won (=1) 17,408,90 won + (2) 17,408,90 won + 334,436,651 won + 4) 154,000 won + 54,183,294 won + 666 won + 309,220,486 won + 7) 59,22,910 won + 9,423,870 won + 9,600 won + 9,7401,4051) + (4) 154,000 won + 19,184) / [The plaintiff shall pay to the defendant 19,220,486 won + 9,61,740 won + 9,7400 won + 401,5015,29415) / [The plaintiff 501,51404).

However, the Defendant paid 365,00,000 won, excluding 30 million won used as operating expenses of the instant private teaching institute, out of 395,00,000 won for the Plaintiffs’ principal claim, 360,000 won + 90,674,90 won offset by the above 365,00,00 won in proportion to their shares of inheritance, and 533,529,951 won (= 18,240,60 won + 17,400 won + 369,974,941) incurred in the course of operating the instant private teaching institute (= 18,242,60 won + 17,408,90 won + 334,400 won + 154,000 won + 154,000 won + 194,9414,6194).

B. Determination by item

1) Nonparty 3’s total of KRW 7,260,00, including acquisition tax, and registration tax, and KRW 7,920,00,00, including registration tax, and KRW 3,062,60, and KRW 18,242,60, including certified judicial scrivener’s fees, arising during the process of completing the registration of ownership transfer under the name of the defendant with respect to each of one-third shares of the instant land:

According to the statements in Eul evidence Nos. 10 and 65, registration tax and local education tax as of October 10, 2006 with respect to the above real estate transaction with non-party 3, and KRW 7,260,000 with respect to acquisition tax and special rural development tax as of October 30, 2006, and the fact that a certified judicial scrivener fee has been paid is recognized.

However, as to whether the above expenses are paid out of the Defendant’s funds, the Defendant terminated on July 10, 2006 the term deposit of KRW 20 million, which was paid on July 10, 2006, and the Defendant paid the above taxes and the fees for certified judicial scrivener by issuing a cashier’s checks of KRW 10,982,600. However, considering the relationship between the deceased and the Defendant as seen earlier, the title trust relationship with the land and the building of this case, and the legal relationship with the operation of the private teaching institute of this case, it is insufficient to recognize that each of the above evidence and evidence and evidence Nos. 77 and 78 were created with the Defendant’s funds, or that the money that terminated the above term deposit was used for the above expenses. Rather, there is no evidence to acknowledge otherwise, and there is reasonable ground to acknowledge that the money that the title truster of this real estate used as the funds of the deceased.

2) Nonparty 4’s total of KRW 8,80,00 and KRW 8,528,900, including acquisition tax, etc., and KRW 17,408,90,00, including registration tax, etc., arising in the course of completing the registration of ownership transfer under the Defendant’s name for each of one-third shares of the instant land: Non-approval

According to the statements in Eul evidence Nos. 11 and 65, it is recognized that the registration tax and local education tax as of December 18, 2008 with respect to the above real estate transaction with non-party 4 was paid in KRW 8,80,00, acquisition tax, and KRW 8,528,900 with respect to the above real estate transaction with non-party 4.

However, as to whether the above expenses are paid out of the Defendant’s funds, the Defendant asserts that the above taxes were paid out of the Defendant’s account (Account No. 4 omitted) account (Account No. 4) in the name of the Defendant, which is used for the operation of the pertinent private teaching institute. The Defendant issued a cashier’s check of KRW 21 million on December 17, 2008, and paid the above amount with the check money, and the amount equivalent to the check money was disposed of as the Defendant’s repayment of the money loaned to the instant private teaching institute as indicated in paragraph (3) above. However, according to the evidence No. 13-1 of the evidence No. 13, it is difficult to recognize that the balance of the private teaching institute Account No. 13, while the balance of the above check No. 517,160 won was deposited in the above account prior to the issuance of the check, and it is difficult to recognize that the Defendant’s claim against the deceased’s money was deposited in the above account as follows.

3) Total amount of KRW 334,436,651 disbursed by the Defendant for the operation of the instant driving school: Non-recognition

The Defendant, while holding office as the principal of the instant private teaching institute, lent operating expenses of the instant private teaching institute to the Deceased by depositing KRW 541,286,414 (attached Table 2) from a bank account used for the operation of the instant private teaching institute for personal purposes whenever the funds of the instant private teaching institute fall short of the funds of the deceased before the death of the deceased. The Defendant asserted that KRW 206,849,763 (attached Table 3 total sum) was refunded, and that the remainder of KRW 334,436,651 was not returned.

In light of the following circumstances, it is difficult to recognize that the amount deposited by the Defendant from the bank account being used for the operation of the instant private teaching institute to the bank account used for the operation of the instant private teaching institute was formed from the Defendant’s personal property, and it is difficult to recognize that the amount deposited into the bank account used for the operation of the instant private teaching institute was used in the instant private teaching institute. Thus, it is difficult to find that the said amount deposited by the Defendant alone was used in the private teaching institute operation of the instant private teaching institute, and there is no evidence to acknowledge otherwise, solely based on the above specification claimed by the Defendant, that the amount deposited into the bank account used for the operation of the instant private teaching institute was used in the private teaching institute operation of the instant case.

A) The Defendant’s above assertion is premised on the premise that the bank accounts opened or managed by the Defendant in the name of the Defendant are strictly divided into the Defendant’s personal use and the use of the instant private teaching institute operation, and that the funds held by each account are divided into the Defendant’s personal funds and the funds for operating the instant private teaching institute.

B) Under the name of the Defendant, the Defendant’s bank account (Account Number 1 omitted), (Account Number 1 omitted), (Account Number 14-1), (Account Number 14-1), (Account Number 5 omitted), (Account Number 2), (Account Number 14-2), (Account Number 6 omitted), and (Account Number 7 omitted) account (Account Number 7 omitted), under the name of the Defendant’s apartment loan account, (Account Number 14-3, (Account Number 14-4, (Account Number 14-3, (Account Number 8), (Account 8 omitted), (Account No. 14-5, Defendant’s Incheon Seo-gu land security loan account, (Account Number 14-5, Defendant Nonparty 14-9, Defendant’s account (Account Number 14-6, Nonparty 14, and Nonparty 2), and (Account No. 3, Nonparty 14-2, and (Account Number 3) account in the name of the Defendant’s private teaching institute.

C) However, as the Defendant’s personal source of funds claimed by the Defendant as operating expenses of the instant private teaching institute, the amount of KRW 263,159,324 from the Defendant’s personal source of funds deposited on September 9, 201 to the Defendant’s account was paid as the purchase price refund of KRW 263,159,324 from the Defendant’s apartment sale contract cancellation, and KRW 190,000,000 to the Defendant’s account, which was deposited on June 19, 2009 and October 9, 2009, KRW 19,000,000 to the Defendant’s account, was disbursed from the private teaching institute B. Under the instant lease agreement, KRW 30,000,000 to the Defendant’s account, and KRW 300,000,000,000,000 were transferred to the Defendant’s account.

D) For a considerable period of time, considerable amount was transferred from the Defendant’s personal purpose account to the Defendant’s personal purpose account from the account for the operation purpose of the instant private teaching institute to the Defendant’s personal purpose account. Of such a series of transactions, there was no further confirmation of transaction details regarding the amount withdrawn from the account for the use purpose of the instant private teaching institute. Furthermore, according to the Defendant’s assertion, the transaction between the said account was related to the lending and repayment of the operating fee of the private teaching institute for a considerable period of time, even though the said transaction was related to the lending

E) In light of the aforementioned circumstances, it cannot be deemed that the instant private teaching institute operation account and the Defendant’s private individual account were strictly distinguished and managed, and it is difficult to view that the money deposited in the Defendant’s private use account is purely personal funds.

F) In relation to this, the Defendant asserts that the Plaintiffs returned the amount equivalent to KRW 263,159,324 of the sale price refund from the Defendant through a claim for the return of loan amounting to KRW 263,159,324, and that the Deceased’s deposit in the private teaching institute passbook B was donated to the Defendant. As such, the amount equivalent to the said money would result in the Defendant’s use of personal funds for the operation of the private teaching institute. However, as long as the Defendant’s considerable period of time does not clearly indicate the specific circumstances of multiple transactions between the Defendant’s personal account and the private teaching institute account, it is difficult to conclude that the said money was used for the operation of the private teaching institute of this case, regardless of the nature of the refund money and the

4) The Defendant’s unpaid benefits (which was paid in 154,00,000,000, 5) retirement allowances 19,183,294: Non-recognition of each of the non-approvals

The Defendant, on October 26, 2006, agreed to receive the monthly salary of KRW 3.5 million between the deceased and the deceased during the pertinent term of office as “satisfying expenses.” As such, the Defendant asserted that the instant private teaching institute should receive the payment of KRW 154,00,00 in total for 44 months between the date of closure of business on May 31, 2012 (=3.5 million x 44 months) and the retirement allowance of KRW 19,183,294, which is calculated on the basis of the said salary, as the primary salary, as remuneration under the delegation contract for the management of private teaching institutes.

However, in light of the following circumstances, it is not sufficient to recognize that the Defendant had a reasonable claim, such as the sales bonus, which was not paid from the deceased, solely on the basis of the descriptions of Gap evidence Nos. 70 through 72, Eul evidence Nos. 14, 15, 21, 59, 67 through 72, and 85, and there is no other evidence to acknowledge otherwise.

A) Even if the Defendant was in office as the head of the instant private teaching institute, and was paid benefits before the △△△△ Institute, such circumstance alone cannot be readily concluded that the agreement on the payment of remuneration between the Defendant and the Deceased was concluded, as alleged above, with the instant private teaching institute. Moreover, the Defendant cannot be deemed as an employee under the employment contract that is subject to the payment of retirement allowances.

B) Although the instant private teaching institute’s wage ledger or income statement statement contains KRW 3.5 million per month, the Defendant’s claim that the amount was paid as the above sales fund is not specified, even in the case of 2007, the amount of KRW 3.5 million per January 8, 200, KRW 2.87 million per September, 4.9, KRW 3.2 million per September, 5.3 million per June, and KRW 3.3 million per June, 6.3 million per July, 13, and KRW 3.4 million per July, 7, and KRW 3.2 million per July, 8, 2008, and it does not appear that the amount was paid in the private teaching institute’s account, which is the account’s expense.

C) According to the Defendant’s assertion, for about 67 months from October 26, 2006 to May 31, 2012, 44 months up to 65% of the period of about 67 months (five years and seven months), the head of the instant private teaching institute has been performing the duties of the head of the instant private teaching institute. However, the Defendant has been managing the account for the use of operating expenses of the instant private teaching institute established in the Defendant’s name. Considering the fact that the details of multiple transactions between the Defendant’s personal usage account and the account for operating the instant private teaching institute have not been clearly revealed, it does not appear that the Defendant did not pay only remuneration as the head of the instant private teaching institute for a considerable period as above.

6) The payment of interest on loans 309,220,486

A) Comprehensively taking account of the entries in evidence Nos. 16 and 24-8 through 10 of evidence Nos. 16 and the results of the submission of financial transaction information to the Nonghyup Bank of the first instance court and the purport of the entire pleadings, the Defendant is recognized to have received a loan of KRW 1.4 billion from the Nonghyup Bank on May 16, 2012 and repaid the principal and interest of the loan that was received under the name of Nonparty 2 between the new bank and the new bank on the same day for the construction of the building of the building of this case on the same day, and paid the interest of KRW 309,220,486 in total under the said loan agreement with the Nonghyup Bank from June 2012 to November 2016.

B) The Defendant’s payment of interest during the instant loan is deemed to have been returned to the management of the instant building. Since the title trust agreement between the Deceased and the Defendant on the instant land and building becomes null and void, the delegation agreement on its management is also null and void (see, e.g., Supreme Court Decision 2013Da55300, Sept. 10, 2015). Therefore, the Defendant’s primary claim, premised on the right to claim reimbursement of expenses under the delegation agreement, is groundless.

However, as seen earlier, since the land and buildings in this case belong to the Plaintiffs, who are their successors, as the owner of the deceased, it is reasonable to deem that the Plaintiffs unjust enrichment by exempting the Defendant from paying interest on the construction fund loans in this case. Accordingly, upon the Defendant’s conjunctive claim, the Plaintiffs are obligated to return the above amount to the Defendant.

7) 59,22,910 won, such as property tax, etc. on the instant land and buildings, and 8) The amount of comprehensive real estate holding tax on the instant land is 9,423,870 won, each of which is recognized.

A) In full view of the overall purport of the statements and arguments in the evidence Nos. 17 and 20, the Defendant paid KRW 59,222,910, including property tax, etc. from 2012 to 2016 as an owner on the register of the instant land and building, and paid KRW 9,423,870 from 2012 to 2015.

As seen above 6-B) as seen in the above 6-B, the Defendant’s primary claim is without merit, premised on the right to claim reimbursement of expenses under a delegation contract for the management of the instant land and building between the deceased and the Defendant, but it is reasonable to deem that the Plaintiffs, as the owner of the instant land and the building, paid the property tax, etc. after the deceased’s death, thereby exempting the Defendant from paying that amount. Accordingly, the Plaintiffs, upon the Defendant’

(ix)payment of global income tax and local income tax on rent income 9,661,740 : accreditation;

In full view of the written evidence Nos. 19 and 22, as well as the result of the submission of taxation information to the director of the Incheon Tax Office of the first instance court, and the purport of the entire pleadings, the registration of the rental business operator in the name of the Defendant was completed on May 31, 2012 of the instant Institute of Research and Development, and the Defendant paid the total amount of KRW 9,61,740,00 for global income tax and local income tax imposed on the rental income of the instant building after the death of the Deceased.

As seen above 6-B) as seen in Paragraph (b) of the above, the Defendant’s primary claim is without merit, premised on the right to claim reimbursement of expenses under the delegation contract between the deceased and the Defendant on the instant building, but it is reasonable to deem that the Plaintiffs, the inheritor of the deceased, who is the heir of the rights and obligations under the instant lease agreement on the instant building, was unjustly unjust enrichment by removing the expenses from the Defendant’s payment of the said taxes. Accordingly, upon the Defendant’s conjunctive claim, the

10) 43,154,050 won paid in lieu of value-added tax related to the leasing business: Recognition

A) Comprehensively taking account of the respective descriptions and arguments stated in Gap evidence Nos. 62, 63, and Eul evidence Nos. 18, and 55, the defendant completed business registration for the instant building leasing business and paid KRW 74,654,050 as value-added tax on rental income accrued under the instant lease agreement from July 25, 2012 to November 16, 2016. As seen earlier, the amount of rent deposited by the lessee for 33 months from March 2014 to November 2016 under the instant lease agreement includes value-added tax 49,50,000, and the plaintiffs received the said deposit.

6) As seen in Paragraph 2(b) above, the Defendant’s primary claim on the premise of the right to claim reimbursement of expenses under the delegation contract between the deceased and the Defendant on the instant building, is without merit. However, it is reasonable to view that the Plaintiffs, the heir of the deceased, who is the heir of the right and duty on the lease business of the instant building, received the amount equivalent to the value-added tax from the lessee, and the Defendant was exempted from the payment of the value-added

Therefore, upon the Defendant’s conjunctive claim, the Plaintiffs are obligated to return 43,154,050 won (=74,654,050 won paid by the Defendant - value-added tax equivalent to 31,50,000 won (=1,50,000 won x 21 month from June to February 2014) equivalent to the value-added tax on rental income paid by the Defendant to the Defendant as unjust enrichment.

11) 51,278,599 operating expenses for leasing business, including the management of the instant building: Recognition

In full view of the evidence and facts as mentioned above and the facts as well as Eul’s evidence and facts, as well as Eul’s 14, 23, 24, 30 through 34, 42, 43, 46, 90 through 93, and the results of the first instance court’s order to submit financial transaction information to the Nonghyup Bank and the purport of all pleadings, the Defendant, as the president of a private teaching institute, failed to assist the Deceased’s operation as the president of the private teaching institute on August 29, 2012, which was long after the Deceased’s closure of the private teaching institute and the transition to the lease business. In the process, the Defendant failed to preserve the expenses incurred for the management of the building of this case and the operating expenses of the private teaching institute which was not settled before the closure of the private teaching institute as described in the following table (the Defendant’s account and the Defendant’s account was directly disbursed from the account No. 10 omitted).

본문내 포함된 표 순번 내역 영수인 금액(원) 지출일자 1 주차장 천정공사 소외 5 3,000,000 2012.4.8. 2 주차장 전기공사 소외 5 4,800,000 2012.4.25. 3 건물 내 칸막이, 책걸상 철거 소외 6 2,000,000 2012.4.8. 1,400,000 2012.4.13. 4 부개정문학원 홈페이지 관리비 소외 7 100,000 2012.4.26. 5 전기안전관리대행 주식회사 한양전기안전관리 176,000 2012.4.28. 6 방화관리 주식회사 우리소방기술단 110,000 2012.4.28. 7 아르바이트 소외 8 400,000 2012.5.8. 2012.6.25 8 대출 채무자 변경비용 (미납 이자 변제, 인지, 채권 구입) 신한은행 농협은행 7,274,339 2012.5.16. 9 천정보수공사 소외 9 1,650,000 2012.6.1. 10 화재보험료 현대해상 1,073,400 2012.6.15. 2015.6.18. 2016.6.18. 11 기장료(이 사건 학원) 소외 10 871,200 2012.7.~2012.11. 12 기장료(임대사업) 소외 10 4,320,400 2012.7.~2014.11. 13 환경개선부담금 인천광역시 부평구청장 37,690 2012.9.10. 2013.3.25. 2013.9.24. 2014.3.25. 14 전기정기검사 한국전기안전공사 674,740 2012.9.20. 15 주차기정기검사 한국주차설비협회 409,200 2012.11.16. 16 미지급강사료 소외 11 1,000,000 2012.11.25. 2012.12.31. 2013.1.31. 17 보온공사① 디자인 □ 3,410,000 2012.12.23. 18 보온공사② 디자인 □ 3,300,000 2012.12.31. 2013.1.31. 19 정유량절수기 설치비 진성닷컴 주식회사 826,100 2013.9.16. 20 엘리베이터 비상통화장치 설치비 티센크루프엘리베이터코리아 주식회사 561,000 2014.4.30. 21 비상전화기본료 SKT 125,730 2014.6.~2017.7. 22 하수구 수리 소외 12 300,000 2014.7.21. 23 기장료 유진회계법인 8,390,800 2014.12.~2017.7. 24 나무자르기 소외 13 250,000 2016.7.15. 25 소방시설공사 주식회사 우리소방기술단 330,000 2016.8.16. 26 배수펌프교체 주식회사 에이플러스공조 715,000 2016.8.16. 27 에어컨실외기콤푸교체 주식회사 에이플러스공조 3,773,000 2016.9.1. 2016.9.13. 2016.10.16. 2016.11.2. 2016.11.23. 합계 51,278,599

Therefore, regarding the part concerning the operation of the instant private teaching institute (No. 4, 11, and 16) of the above expenditure, the Plaintiffs are obligated to reimburse the part (No. 4, 110,000 won among the above expenses) incurred in the deceased’s living among the expenses that the Defendant delegated by the deceased with respect to the operation of the instant private teaching institute as necessary expenses pursuant to Article 688(1) of the Civil Act. The expenses incurred after the death of the deceased can be deemed to be the expenses incurred within the scope of the right to manage emergency affairs pursuant to Article 691 of the Civil Act even after the death of the deceased, and thus, the above delegation contract is also obligated to reimburse as necessary expenses.

In addition, with respect to the management of the land and buildings in this case and the parts related to the leasing business thereof, it is reasonable to view that the delegation contract between the deceased and the defendant was null and void, or that the plaintiffs made unjust enrichment by removing their obligations due to the defendant's expenditure.

Therefore, the Plaintiffs are obliged to pay the above KRW 51,278,59 to the Defendant.

12) Consideration of KRW 231,00,000 for provision of management services of the instant building: Non-recognition

The defendant asserts that the defendant should receive 231,00,000 won per month calculated by the ratio of 3.5 million won per month (=3.5 million won per month x 66 months from June 1, 2012 to November 21, 2017) that is claimed as the benefits received by the defendant while serving as the principal of the pertinent private teaching institute in consideration of various labor or services provided by the defendant to lease the building of this case, such as physical lease or repair of the building of this case from the plaintiffs.

However, there is no evidence to prove that there was an agreement between the deceased or the defendant to pay the remuneration for the management of the building of this case, and as seen earlier, the defendant was not determined as the president of the private teaching institute of this case to receive the above amount. Furthermore, according to the aforementioned evidence, in principle, according to the lease agreement of this case, the lessee determined that in principle, the lessee would manage the building of this case entirely and did not pay the management expenses separately to the defendant, and the expenses necessary for the maintenance and preservation of the building of this case and the building of this case and its facilities, which are determined to be borne by the lessor by the defendant, have

Therefore, there is no legal basis for the Defendant to seek compensation as alleged above from the Plaintiffs.

13) The Defendant’s purchase cost of KRW 9,441,800 paid in the course of operating the instant driving school: Non-recognition

Although the Defendant alleged that he had spent expenses necessary for prompt disbursement, such as purchase of goods necessary for the instant private teaching institute while holding office as the principal of the instant private teaching institute, it is insufficient to recognize the same only with the descriptions of the evidence Nos. 47, 79, and 80, and there is no other evidence to acknowledge it.

C. Judgment on the plaintiffs' assertion

As to the above-mentioned items, the plaintiffs paid with the intent of pretending that the land and the building of this case and the private teaching institute of this case are owned by the defendant with the knowledge that they are owned by the deceased, and therefore, they cannot claim the return of the above items as illegal consideration because they fall under the non-payment of Article 742 of the Civil Code, or have given up their right to demand reimbursement against the deceased, or have been paid for the purpose of making the above real estate owned by the defendant, and even if not,

As seen earlier, in light of the developments leading up to the Defendant’s assertion of the instant land and building as one’s own possession and the process and contents of disbursement of the Defendant’s aforementioned recognized items, even if it was found as a result of the judgment in the prior suit that he owned the deceased, it is difficult to view that the Defendant’s act of performance for illegal cause, such as payment of debt, waiver of his right of reimbursement, or claim for reimbursement as illegal cause, such as violation of social order, is against the good faith principle, even if it was found that the Defendant had possessed the deceased as a result of the judgment in the prior suit finalized.

Therefore, the plaintiffs' above assertion is without merit.

(d) Results of offset.

1) Under the circumstances, barring any special circumstance, the Plaintiffs are obligated to pay the Defendant the total amount of KRW 481,961,65 (=6) 309,220,486 + 7) 59,222,910 + (8) 9,423,870 won + 9), 61,740 won + 10) 43,154,050 won + 11), 51,278,599 [11] 4, 11, 165 won, total of KRW 1,971,200, and KRW 200,000 determined as the beneficiaries of the instant lawsuit from the day following the date on which the Plaintiffs seek as the beneficiaries of the instant lawsuit from the date on which the Plaintiffs were paid the remainder of KRW 16,271,200,000 per annum of the instant case, as the beneficiaries of the instant lawsuit from the 15th day of November 21, 20197.

2) Furthermore, if the defendant's claim based on the counterclaim as set forth in the above Paragraph (1) is set off on an equal amount according to the defendant's declaration of set-off by the service of the preparatory document as of November 22, 2017, with the defendant's claim based on the plaintiff's counterclaim as set forth in Paragraph (2) above, the defendant's claim based on the counterclaim as set forth in the above Paragraph (2) was set off on an equal amount. At least 395,00,000, and the automatic claim and hand-over claim are not set upon the due date, and there was no set for both the claims within the maximum of 395,00,000, and the claim was set off on an offset amount as of November 21, 2016, whichever is earlier among the initial date of calculation of the above claims, such claims were set off on an offset amount as of November 21, 2016.

3) As to this, the plaintiffs asserted that the plaintiffs' claim for damages for delay calculated at the rate of 20% per annum from July 21, 2017 to the date of full payment, as shown in the separate sheet No. 4, which is 7,851,017, which remains after the payment of part of the claims arising from the Seoul High Court's final judgment on the case No. 2014Na2030801, and the damages for delay calculated at the rate of 20% per annum from July 21, 2017 to the date of full payment, as stated in the defendant's claim No. 2) against the defendant

Comprehensively taking account of the purport of the evidence evidence Nos. 75 and 76, the plaintiffs 1 and 2, as shown in the separate sheet Nos. 5 against the defendant, have no claims based on the above final judgment, and only plaintiffs 3 have claims for delay damages calculated at the rate of 20% per annum from July 21, 2017 to the date of full payment.

Therefore, as we seek only 30,098,435 won and damages for delay calculated at the rate of 20% per annum from July 21, 2017 to the date of complete payment as to Plaintiff 3’s claims listed in the separate sheet Nos. 4,098,435 won and the damages for delay calculated at the rate of 20% per annum from July 21, 2017 to the date of complete payment. Of the Defendant’s above 2, the part against Plaintiff 3 was 37,269,280 won (i.e., KRW 86,961,65 won x 3/7, less than the original as a result of calculation x 3/7, but less than the original x 3/7; hereinafter the same shall apply) among the claims listed in the separate sheet Nos. 4, 4, 30,380 won and 48, 30,79, and 39, 306, respectively, respectively.

E. Sub-committee

Therefore, Plaintiff 1 and Plaintiff 2 are liable to pay interest and delay damages calculated at the rate of 5% per annum under the Civil Act from July 26, 2018, the service date of a copy of the counterclaim of this case, which is the service date of the Plaintiff 3,170,845 won, and each of them, which are 24,846,187 won (i.e., 86,961,65 won x 2/7 of inheritance), and the interest and delay damages calculated at the rate of 15% per annum under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings from the following day to the day of full payment.

4. Conclusion

Therefore, the defendant's counterclaim claim within the above recognition scope shall be accepted for the reasons, and all the plaintiffs' counterclaim claims and the defendant's remaining counterclaim claims shall be dismissed for the lack of reasonable grounds. However, since the judgment of the court of first instance is inappropriate for a partial conclusion, it is so decided as per Disposition by changing the judgment of the court of first instance (excluding the part invalidated by the withdrawal of lawsuit by this court), including the additional claim in this court

(attached Form omitted)

Judges Hong-Myeon (Presiding Judge)