Plaintiff (Attorney Kim Jin-jin et al., Counsel for plaintiff)

Defendant (Attorney Kim H-soo, Counsel for the defendant-appellant)

April 30, 2008

Busan District Court Decision 2006Gadan25857 Decided July 4, 2007

1. All appeals filed by the plaintiff and the defendant are dismissed.

2. The costs of appeal shall be borne by each party.

1. Purport of claim

The defendant shall pay to the plaintiff 112,483,639 won and 88,30,000 won with 20% interest per annum from the day following the delivery of a copy of the complaint to the day of complete payment.

2. Purport of appeal

Of the judgment of the court of first instance, the part against the plaintiff shall be revoked. The defendant shall pay to the plaintiff 53 million won with 5% interest per annum from February 9, 2006 to the judgment of the court of first instance, and 20% interest per annum from the next day to the date of full payment.

Defendant: The part against Defendant in the judgment of the first instance court shall be revoked, and the Plaintiff’s claim corresponding to the above revocation shall be dismissed.

1. Facts of recognition;

The reasoning for the court’s explanation concerning this case is as stated in Paragraph 1 of Article 420 of the Civil Procedure Act, except for adding evidence Nos. 6, 7 to the part concerning the reasons for the judgment of the court of first instance as stated in Paragraph 1 of Article 420 of the Civil Procedure Act (No. 4. 19).

2. Determination on the part of the purchase price of a ship

A. Judgment on the Plaintiff’s assertion

(1) The plaintiff asserts that the defendant has a duty to compensate the plaintiff for the actual amount of KRW 33,00,000,000,000, which is the amount calculated by subtracting the amount of KRW 2,000,000 for the actual cost of purchase of the ship from KRW 73,000,000, which is the amount calculated by subtracting the amount of KRW 2,000,000 for the actual cost of purchase of the ship per person (=12,00,000,000 for the actual cost of purchase of the ship) from KRW 75,00,000 paid by the plaintiff.

Pursuant to the facts stated above, if the defendant stated to the plaintiff that the purchase price of the instant sub-subsidiary was KRW 120,000,000,000, the defendant and the non-party 1 did not intend to conduct the instant club business until they invested more than KRW 1/3 of the purchase price of the instant sub-subsidiary line in the Plaintiff, while making an investment more than KRW 75,000,000,000, which is much more than KRW 1/3 of the purchase price of the instant sub-subsidiary line, the defendant and the non-party 1 agreed to attract the plaintiff to its partners for the purpose of raising the expenses to repair the above sub-subsidiary line. The defendant suggested that the purchase price of the instant sub-subsidiary line was KRW 220,000,000, and if the business was conducted on the part of the plaintiff, the defendant would sufficiently guarantee the income of KRW 20,000,000, and divided it equally into one-third, thereby obtaining damages from the plaintiff and the defendant were liable to obtain damages from the plaintiff for fraud.

Article 75,00,000 won paid by the Plaintiff as partner and the Plaintiff later participated in the partnership business, and thus, the amount of damages shall be 30,000,000 won calculated by subtracting KRW 2,00,000,000, which was paid by the Plaintiff as partner, from KRW 120,000,000, which was computed by subtracting KRW 120,000,000, which was paid by the Plaintiff as partner, from KRW 70,000,000, which was paid by the Plaintiff as partner.

Accordingly, the defendant is obligated to pay to the plaintiff 30,000,000 won and damages for delay at the rate of 5% per annum as stipulated in the Civil Act from February 9, 2006 following the delivery date of the complaint of this case until July 4, 2007, which is the date of the first instance judgment, and 20% per annum as stipulated in the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings from the next day to the date of full payment. Thus, the plaintiff's assertion is with merit within the above scope of recognition.

B. Judgment on the defendant's assertion

On March 6, 2002, the defendant argued that he did not have a duty to pay the above money because he received 120,000,000 won from the non-party 1, the defendant paid 105,000,000 won from the non-party 1, and the non-party 2, who is the children of the non-party 1, completed the transfer of the ownership of the above loan. Thus, it cannot be recognized that the plaintiff agreed to pay the above money including the plaintiff's damage claim in the course of settling the same business relationship as above (In full view of the above facts and the purport of the whole arguments, it seems that the plaintiff was unaware of the fact that the damage claim of this case was issued when settling the same business relationship as above). The plaintiff can claim damages of this case separately from the above settlement. Thus, the above defendant's assertion is without merit.

3. Determination on the part of the cost of repair of a ship

(1) The Plaintiff asserted that the Defendant was liable to compensate the Plaintiff for damages of KRW 50,000,00,000, which is the difference between the Plaintiff and Nonparty 1 (the Plaintiff’s vessel repair investment - KRW 60,000,000,000, which is the difference, as the Defendant received only KRW 10,000 from Nonparty 1, a joint investor, at the vessel repair cost, while maintaining and managing the instant sub-branch line. The Plaintiff asserted that the Defendant was liable to compensate the Plaintiff for the damages, on the ground that he was aware that the Plaintiff was 50,00,000,000, the vessel repair investment - Nonparty 1’s vessel repair investment - KRW 10,000,00,000, which is the difference.

The testimony of Non-Party 1, as alleged by the Plaintiff, is insufficient to recognize that the Defendant inflicted damage on KRW 50,00,000 on the Plaintiff as alleged by the Plaintiff, on the sole basis of the written statements 1, 3, and 4 of the evidence Nos. 16 through 8, 19, and the testimony of Non-Party 1 of the first instance trial and the trial of the court of appeal. The Plaintiff’s assertion is without merit

4. Conclusion

Therefore, the plaintiff's claim of this case is justified within the scope of the above recognition, and the remaining claims are dismissed as it is without merit. Since the judgment of the court of first instance is just in conclusion, the plaintiff's appeal and the defendant's appeal are dismissed as it is without merit. It is so decided as per Disposition.

Judges Temporary rules (Presiding Judge)