2013Da84575 Demurrer against distribution

A Stock Company

B

Seoul High Court Decision 2012Na31910 Decided September 26, 2013

September 26, 2017

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. The reasoning of the lower judgment and the evidence duly admitted reveal the following.

A. Before each of the instant investment agreements was made, F, the representative director of G Co., Ltd. (hereinafter referred to as “G”) and D Co., Ltd. (hereinafter referred to as “D”), did not have any awareness with the Defendant.

B. On July 15, 2009, the service contract drawn up between G and the Defendant was signed by G and the Defendant only to delegate the I-sale agency duties to the Defendant as indicated in the lower judgment, and there is no indication as to KRW 200 million contributed by the Defendant. As the Plaintiff’s assertion, if the investment agreement was forged on July 15, 2009, there is no disposition document regarding KRW 200 million received between G and the Defendant. In addition, the Defendant transferred KRW 200 million to the account in the name of G around 12:28 on the same day before the contract was drawn up, and it is difficult to view that the Defendant paid a large amount of money without preparing any disposal document that was written by the Defendant. The agreement of this case was signed by the Defendant and the parties to the service contract, other than G, with the seal imprint affixed to D and the seal imprint affixed to the Defendant, and the parties to the service contract concluded with G are not only the Plaintiff’s assertion that the agreement was signed by the Defendant 2000 and each of this case.

D. At the time of the preparation of each of the instant investment agreements, D was not easy to prepare a performance bond for each of the instant sales contracts due to the lack of financial circumstances, and the Defendant was aware that it contributed money to G, etc. to the Defendant’s bonds, so it seems that there was a motive for promising the Defendant to pay money much more than the amount contributed by the Defendant.

Furthermore, as of August 26, 2009, F issued a promissory note of KRW 490 million at par value. As of September 28, 2009, F issued a promissory note of KRW 350 million at par value. As of October 21, 2009, F written a written statement of payment stating that interest of KRW 300 million and KRW 12 million should be paid as of October 21, 2009, and F issued the said document to the Defendant. As such, F prepared several documents that acknowledge obligations to the Defendant, and therefore, F made an agreement to pay KRW 100 million to the Defendant as of August 21, 2009.

E. The letter of investment agreement of August 21, 2009 is one document consisting of three chapters, and the defendant, D and G seals are affixed to the paper of the above Chapter 3. However, the statement of the sales agency fee attached to the said letter of investment is not stamped with the document of the above Chapter 3. The method of between the two documents of the said letter of investment agreement and the documents attached thereto is different.

In light of the aforementioned shape of the seal, the possibility that the documents stated in the investment agreement dated August 21, 2009 as the accompanying documents were not actually attached when the said investment agreement was prepared cannot be ruled out. Therefore, it cannot be readily concluded that the preparation date of the accompanying documents is subsequent to the date of the preparation of the said investment agreement and that the said investment agreement was forged.

F. Other circumstances presented by the lower court may not be deemed as a critical basis for the forgery of each of the instant investment agreements. The developments and contents of each of the instant investment agreements are more persuasive by the Defendant’s assertion rather than the Plaintiff’s assertion.

There is a large room.

G. Nevertheless, the lower court accepted the Plaintiff’s assertion that each of the instant investment agreements was prepared without resorting to D’s intent, the nominal owner, solely based on the circumstances indicated in its holding. In so doing, it erred by misapprehending the legal doctrine on the formation of the authenticity of documents, or failing to exhaust all necessary deliberations, thereby exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, thereby adversely affecting the conclusion of the judgment. The allegation contained in

2. Therefore, without further proceeding to decide on the remaining grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Dong-won

Justices Park Jong-young

Justices Kim Jae-tae

Justices Kim Jae-in