2017da92862. Action to demand the amount of distribution

A Stock Company

Law Firm Yoon, Attorney Kim Min-young, Counsel for the plaintiff-appellant

B A.

Attorney C

November 18, 2020

December 2, 2020

1. The defendant shall pay to the plaintiff 43,771,200 won with 6% interest per annum from November 6, 2017 to December 2, 2020, and 12% interest per annum from the next day to the day of complete payment.

2. The plaintiff's remaining claims are dismissed.

3. Of the litigation costs, 40% is borne by the Plaintiff, and the remainder is borne by the Defendant, respectively.

4. Paragraph 1 can be provisionally executed.

The defendant shall pay to the plaintiff 72,875,00 won with 15% interest per annum from the day following the day of service of a copy of the complaint of this case to the day of complete payment.

1. Basic facts

A. The relationship between the parties

1) The defendant is a company that operates a health club with the name of "C" (hereinafter referred to as "the defendant's lecture point") and "B" corporation (hereinafter referred to as "the defendant's fruit store").

In addition to the defendant, corporations such as E (Representative C, Defendant’s incidental table), F (Representative Director of the defendant), G, H, and I operated health clubs using the name of “J”. The funds of each corporation were managed by the head office financial team or C.

2) The Plaintiff (former trade name: KK corporation, L corporation) is a company with the purpose of advertising agency business. The Plaintiff performed public relations activities using leaflets for the Defendant and the pertinent corporations.

B. Defendant’s request for promotional work

1) From May 2016 to December 2016, M of the Defendant’s employees worked at the Defendant’s Gangnam Point, from around January 2017, to around 2017, and from around 2000, the Plaintiff calculated the Defendant’s Gangnam Point from May 2, 2016 to December 23, 2016, the Defendant’s Gangnam Point’s Guide from May 2, 2016, from around January 2, 2017 to around April 19, 2017, each production and printing of the Defendant’s Gucheon Point’s Guidebook from around 2017 to around 200, or (a) posting or inserting it on the bulletin board of the apartment complex, (b) posting or inserting it on the entrance of each apartment house or household, and (c) being paid the price for each of the above work after consultation.

2) On January 11, 2017, the Defendant’s employee M sent the Plaintiff’s staff member N sent the message that the Plaintiff’s staff member N sent the message that it will be managed by this case, and on February 8, 2017, the Defendant sent the message that “I will go back to the Kacheon Point. I will go back to the Kacheon Point.” From May 2017, M requested N to publicize the J T Twit Point’s former position. At the request of M, the Plaintiff, from January 12, 2017 to February 9, 2017, and from May 12, 2017 to May 17, 2017, the Plaintiff promoted M’s former position.

C. Receiving partial payments and issuing tax invoices by the Plaintiff

1) On April 5, 2017, the Plaintiff discontinued the J’s public relations work on the grounds that the outstanding amounts at the entire J branch are too high.

2) On April 10, 2017, the Plaintiff demanded C to pay KRW 2,288,00,00 from July 2016 to December 2016, 2016 the Defendant’s excessive points; KRW 2,241,80; and KRW 1,735,800 of the outstanding amount of H 2,241,80; and KRW 2,28,000 of the outstanding amount of KRW 2,28,000 on April 7, 2017; and KRW 2,241,80 on April 12, 2017; and KRW 1,735,800 on April 1, 2017 (whether the Plaintiff received the outstanding amount from April 27, 2017 to May 30, 201).

3) On April 25, 2017, the Plaintiff received some payments from the Defendant, etc., and resumed the J’s publicity work.

4) On May 25, 2017, the Plaintiff issued a tax invoice of KRW 43,410,40 with the Defendant’s Gangnam Point as the recipient of the Defendant’s Gangnam Point. The amount is the sum of the Defendant’s performance of the promotional work on the Defendant’s Gangnam Point and the performance of the promotional work on the Defendant’s replacement points of JJ, P and closed. In addition, on October 2, 2017, the Plaintiff issued a tax invoice of KRW 13,989,80 and KRW 12,086,80 with the Defendant’s Gangnam Point as the person who is the recipient of the Defendant’s Gangnam Point to claim the payment for the promotional work on the Defendant’s excess points. The supply amount of each of the above tax invoice is KRW 72,914,600,600. The Plaintiff issued the tax invoice of KRW 72,600 to the Defendant’s person who is the recipient of the Defendant’s excessive points.

5) The Plaintiff received KRW 39,600 from P on September 2, 2017.

[Ground for Recognition: Facts without dispute; entries in Gap's evidence 1 through 43, 45 through 63, 68 through 199; witness N and M's testimony and purport of whole pleadings]

2. The assertion and judgment

A. The parties' assertion

1) The plaintiff's assertion

The Plaintiff, at the request of the Defendant from September 2014 to May 2017, performed public relations activities equivalent to KRW 72,914,600 (including additional tax) in total, and received KRW 39,600 out of the proceeds. Accordingly, the Defendant is obliged to pay the Plaintiff the outstanding amount of KRW 72,875,00 (= KRW 72,914,600 – KRW 39,600).

2) The defendant's assertion

The defendant has paid all the price for the portion where the actual publicity and evidentiary materials exist, and the exceeding part shall not respond to the plaintiff's claim on the grounds that there is no objective data that the plaintiff performed the publicity work according to the agreement between the plaintiff and

B. Determination

1) Determination as to the defendant's claims related to Gangnam Points and Ocheon Points

In full view of the evidence and the overall purport of the pleadings as seen earlier, the Plaintiff’s promotional work for Defendant Gangnam, which was performed from May 2, 2016 to December 23, 2016, is KRW 37,659,60 (= KRW 4,974,200 for May, + KRW 1,056,00 for June + + KRW 3,568,40 for July 3, 568 + KRW 12,768,800 for August + KRW 12,735,400 + KRW 3,630,00 for October 3, 200 + KRW 2,510 + KRW 2,510,00 for December 2, 200 + KRW 12,768,800 for May 17, 201; and the Plaintiff’s promotional work is not likely to interfere with each of the above facts.

① In full view of the fact that the Plaintiff’s N and M, a staff in charge of the Defendant’s work, requested work using Kakakaox and telephone, mail, etc. and confirmed the contents of work (see, e.g., Evidence A No. 4, it is confirmed that it was difficult to proceed with work using N and M, etc. even if considering the Kakaox message of No. 4), and N and M, the contents of the Kakaox messages (Evidence A No. 4) during the above period and the contents of the Plaintiff’s outstanding amount ledger (Evidence No. 5 and 6) during the above period, the Plaintiff seems to have actually performed the same publicity work as the contents in the outstanding amount ledger during

② In light of the fact that the Plaintiff did not prepare a contract and did not issue a detailed statement or tax invoice at each time when the Plaintiff’s work was conducted, a large number of small amount of transactions between the Plaintiff and the Defendant were conducted repeatedly, and that the Plaintiff’s employee, in addition to the Defendant’s health clubs, engaged in various public relations activities of various health clubs using the Defendant’s trade name, i.e., “I”, it was difficult for the Plaintiff to take measures to prepare a contract and a detailed statement, etc. at each time of the work, and the Defendant’s employee M neglected to demand the Plaintiff to submit a detailed statement, etc. (M neglected to prepare documents for internal reports). The Defendant did not have been in charge of managing funds internally).

In addition to the fact that the Defendant did not have written a written contract or a transaction statement, etc., it is difficult to deny the fact that the Plaintiff did not carry out the promotional work solely on the ground that the Plaintiff did not prepare or deliver a written contract, a transaction statement, a transaction statement, or a tax invoice, etc.

③ The Defendant asserts that, compared to the frequency of request for public relations work of M in Kakao Stockholm messages, the number of public relations activities recorded in the outstanding amount ledger and the number of pages is excessive. However, in the case of request for public relations work of M, it is difficult to accept the Defendant’s assertion that the production (in a case where the contents of the prior complex are changed), printing, distributing, posting, posting, and direct marketing of the previous page was conducted en bloc. Accordingly, the outstanding amount is indicated in the outstanding amount ledger as a result of the production cost of the previous page, printing, printing, printing (in a case where the contents of the prior complex are changed), printing, posting, posting, and direct marketing, etc. of the previous page, distribution cost of the newspaper (a case where Q, R, T, etc. are indicated differently from ordinary days and indicated separately as separate items), posting cost of the bulletin board, and direct marketing cost were recorded separately on the outstanding amount ledger. In light of the respective work and measurements, each work and the purchase cost of the previous page is different, and it is more difficult to accept the Defendant’s assertion that the outstanding amount divided or more than the outstanding amount.

4) Although the Defendant asserted that the Plaintiff’s employee entered false information in the accounts receivable ledger in order to receive more allowances, it is insufficient to acknowledge such false information only with the entry of the evidence No. 2, etc., and there is no other evidence to acknowledge it (the Defendant could not have sufficiently deliberated on the appropriateness of the specific content even during a long trial period due to the absence of specific description as to which part of the details recorded in the account receivable ledger was recorded falsely, notwithstanding the repeated request for explanation).

2) Determination as to claims related to P, J's will points, and J J's will points

A) P

The Plaintiff asserted that, upon the Defendant’s request, P’s promotional work was performed from September 12, 2014 to April 17, 2015, and received KRW 39,600 out of the price. However, there is no evidence to deem that the Plaintiff’s promotional work for P was conducted at the Defendant’s request. Rather, according to the witness N’s testimony, the Plaintiff’s employee N issued a tax invoice to the Defendant and added the amount to P to the tax invoice against the Defendant. Thus, the Plaintiff’s assertion on this part is without merit.

B) J J J Indoz Points

The Plaintiff asserted that, at the Defendant’s request from August 16, 2016 to May 29, 2017, the J-do's promotional work was conducted by the Defendant. However, the witness N's testimony that "if the J-do's intention was closed at the time of failure to pay a part of the price, it would be asked to the Defendant's military unit C, and thus, it is insufficient to recognize that the Plaintiff performed the public relations work of the J-do's point, such as the Plaintiff's assertion, or that the Defendant assumed the Defendant's obligation to pay the amount as alleged by the Plaintiff, and there is no other evidence to acknowledge this otherwise, this part of the Plaintiff's assertion is without merit.

C) The old JJ Modern Points

The Plaintiff asserted that, upon the Defendant’s request from April 21, 2016 to April 29, 2016, the former JJ store was engaged in the promotional work of the former JJ store. However, the witness N’s testimony that, as the former JJ store closed down its business and talks about the person in charge of the former JJ store, it is insufficient to recognize that the Plaintiff performed the promotional work of the former JJ store, such as the Plaintiff’s assertion at the Defendant’s request, or the Defendant took over the Defendant’s obligation for the promotional work for the above period of the former JJ store, and there is no other evidence to acknowledge this otherwise, this part of the Plaintiff’s assertion is without merit (in light of the evidence evidence No. 29, around April 29, 2017, at least 2016, KRW 471,701, the Plaintiff’s claim for the outstanding amount had already been made to C around 2016, and it seems that there was no possibility for the Plaintiff to receive the outstanding amount from the Plaintiff.

D) J Modern Points

(1) According to the above facts, the Plaintiff’s promotional work at the Defendant’s request from the Defendant’s employee M is recognized as having been conducted from January 12, 2017 to February 9, 2017, and from May 12, 2017 to May 17, 2017. In full view of the respective descriptions of evidence Nos. 4 and 6 and the overall purport of the pleadings, the Plaintiff’s payment is KRW 2,684,002).

(2) Upon the Defendant’s request, the Plaintiff asserted that, from June 13, 2016 to July 21, 2016, from February 24, 2017 to April 26, 2017, and from May 31, 2017, the Plaintiff performed a public relations work for the J-P pursuant to the Defendant’s request. However, each of the evidence Nos. 4 and 6 is insufficient to recognize that the Plaintiff performed a public relations work for the said period, such as the Plaintiff’s assertion, at the Defendant’s request, and there is no other evidence to acknowledge otherwise. Therefore, this part of the Plaintiff’s assertion is without merit (as stated in the evidence No. 4, even if M is not a person in charge of public relations according to the direction of the head of the headquarters on March 3, 2017, but it is recognized that M or the person in charge of public relations requested to do so, but it is not clearly confirmed whether M or the person in charge of public relations after the fact of public relations).

C. Sub-committee

Therefore, the defendant is obligated to pay to the plaintiff 43,771,200 won (Seoul 37,659,600 won + 3,427,600 won + 2,684,00 won on the day following the delivery date of a copy of the complaint of this case) and damages for delay calculated by the ratio of 6% per annum under the Commercial Act from November 6, 2017 until December 2, 2020 and 12% per annum under the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings from the next day until the day of complete payment.

3. Conclusion

The plaintiff's claim is accepted within the scope of the above recognition, and the remainder is dismissed as it is without merit. It is so decided as per Disposition.

Judges Song Jae-woo

1) According to Gap evidence Nos. 4 and 6 and 7, it is recognized that the defendant requested a large-scale request around August 2016.

2) (176,00 won + 88,00 won + 352,00 won + 176,000 won + 275,000 won + 88,000 won + 352,00 won + 176,00 won + (88,000 won + 352,00 won + 352,00 won + 352,00 won + 88,000 won + 352,00 won + 88,000 won) = 2,684,00 won