(영문) 대구지방법원 2018.6.7.선고 2017가합202702 판결

A. Defendant A Co., Ltd shall pay 850,00,000 won and 676,400,000 won among them at each rate of 5% per annum from November 16, 2009 to May 29, 2009, and 15% per annum from the next day to the date of full payment, with respect to KRW 173,60,000,000, respectively;

B. The Defendants jointly pay 142,50,000 won with 5% interest per annum from November 16, 2009 to June 7, 2018, and 15% interest per annum from the next day to the day of full payment.

2. The plaintiff's remaining claims against the defendants are all dismissed.

3. Of the costs of lawsuit, the part arising between the Plaintiff and the Defendant A Co., Ltd. shall be borne by the Defendant A Co., Ltd.; 5% of the part arising between the Plaintiff, the Defendant Co., Ltd. and the Defendant Co., Ltd

4. Paragraph 1 can be provisionally executed.

Purport of claim

Defendant A Co., Ltd. shall jointly pay to the Plaintiff 1,00,000 won, 150,000,000 won among the above amounts, and 150,000,000 won among the above amounts, and 5% per annum from August 11, 2009 to the service date of a copy of the complaint of this case, and 15% per annum from the next day to the day of full payment.

Reasons

1. Facts of recognition;

A. Status of the parties

The Plaintiff is a juristic person established under the Credit Guarantee Act with the aim of guaranteeing the debt of an enterprise which lacks security capacity and facilitating its financing, and establishing a sound credit order through efficient management and operation of credit information to contribute to the balanced development of the national economy. Defendant A Co., Ltd. (hereinafter referred to as “Defendant A”) is a company which entered into a contract with D Bank and E Bank under a credit guarantee agreement with the Plaintiff and received a loan for corporate purchase fund, and F Co., Ltd. (hereinafter referred to as “F”), and Defendant B Co., Ltd. (hereinafter referred to as “Defendant B”) entered into a transaction with Defendant A, and Defendant C is the representative director of Defendant B.

B. In order to reduce the use of bills and increase cash settlement in connection with the settlement of goods for commercial transactions between companies in accordance with the government’s policies to improve the system of bills for commercial transactions, where a purchasing enterprise purchases goods, etc. from a delivery enterprise, a financial institution that received a guarantee from the Korea Credit Guarantee Fund shall pay sales proceeds to a delivery enterprise on the basis of tax invoices and other transaction documents, and a purchasing enterprise is a lending system that redeems them to a financial institution after a certain period of time, and such lending is allowed only to a transaction of goods by a delivery enterprise (so called “B2B”) by electronic means within 30 days from the date of issuance of a tax invoice, etc.

1) Defendant A had F, a business partner, issue a false tax invoice without supplying actual goods or services, and received a loan of KRW 2,587,00,000 in total from the D Bank and E Bank as follows (hereinafter “the act of acquiring loans 1”).

A) F issued a tax invoice of KRW 712,000,000 on June 1, 2009 and received a loan of KRW 712,00,000 from the D Bank on the same day.

B) The F issued a tax invoice of KRW 875,00,000 on August 6, 2009 and received a loan of KRW 875,00,000 from the E Bank on the same day. Of the above loans, KRW 625,00,000 was again transferred to the account in the name of the Defendant A on the same day.

C) F issued a tax invoice of KRW 1,00,000,000 on August 11, 2009 and received a loan of KRW 1,000,000,000 from E Bank on the same day. F deposited a loan of KRW 1,00,000,000,000, and then deposited the loan of KRW 1,000,000,000.

2) In order to pay the royalty of KRW 150,00,000 to Defendant B, a corporation (hereinafter referred to as “G”) was borne by Defendant B using the corporate purchase financing scheme from December 2, 2008 to April 2009, Defendant C had Defendant C issue a false tax invoice without actually supplying goods or services in the name of Defendant B, and received a loan of KRW 150,000,000 from D bank by using the above tax invoice on June 8, 2009 (hereinafter referred to as “the second lending”).

D. Plaintiff’s subrogation, etc.

As Defendant A was unable to repay the obligation under the contract for the use of the purchase fund loan to D Bank and E Bank, the Plaintiff subrogated to D Bank on November 16, 2009 KRW 956,901,411 equivalent to the rate of guarantee ratio of 95%, and on December 2, 2009, KRW 1,506,208,656, equivalent to the rate of guarantee ratio of 80% to E Bank.

【Non-contentious facts, Gap evidence 2 through 6 (including branch numbers; hereinafter the same shall apply), Eul evidence 3-1, the court's racing tax secretary, the order and reply to submit tax information on Jinju tax, the results of each order and reply to the D Bank and E Bank to submit financial transaction information, and the purport of the whole pleadings.

2. Judgment on the claim for the act of defraudation of the first loan

A. Determination on the cause of the claim

1) According to the above facts, Defendant A deceiving D Bank and E Bank by filing an application for a corporate purchase financing loan using a false tax invoice issued by falsity, and then acquired 712,00,000 won from D Bank, and 1,875,000,000 won from E Bank. As a result, the Plaintiff received 676,40,000 won from D Bank among them (i.e., loan of KRW 712,00,000, X Guarantee Rate 95%) from D Bank, and 1,50,000,000 won from E Bank (i.e., loan of KRW 1,875,000,000 x Guarantee Rate 80%). Thus, the causal relationship between Defendant A’s act of acquiring land by fraud and the Plaintiff’s loss is acknowledged.

Therefore, Defendant A is liable to compensate for damages that the Plaintiff sustained by subrogation.

Therefore, Defendant A is obligated to pay to the Plaintiff 2,176,40,000 won (=676,40,000 won on behalf of the Plaintiff for a bank + 1,500,000,000 won on behalf of the Plaintiff for a partial claim, and KRW 676,40,000 out of which the Plaintiff seeks 850,000,000 on behalf of the Plaintiff for a partial claim, and the amount of KRW 676,40,00,00 on behalf of the Plaintiff for a bank, which is the date of subrogation for the Plaintiff, to the Plaintiff for a real loss. From November 16, 2009, 173,60,000 won on behalf of the Plaintiff for a bank, the amount of KRW 5,500,000,000 on behalf of the Plaintiff, which is the date of delivery of a copy of the complaint for each of this case from December 29, 2017.

2) Meanwhile, the Plaintiff seek for the payment of damages for delay from August 11, 2009 out of the date of financing for corporate purchase against Defendant A. However, the claim for damages from a tort is established at the time of actual damage, and whether actual damage has occurred should be determined objectively and reasonably in light of social norms (see, e.g., Supreme Court Decision 2015Da22496, May 31, 2017). In addition, in cases of tort at intervals between the point of time and the point of time in which the damage occurred, the damages for damages from the tort shall be deemed to have occurred as the initial date in which the damage occurred (see, e.g., Supreme Court Decision 2010Da76368, Jul. 28, 2011). In this case, the Plaintiff’s claim for damages from the E bank to the E bank as a result of its execution, and it is difficult to view the Plaintiff’s claim for damages from the subrogation to the Plaintiff as a result of actual tort.

B. Determination as to Defendant A’s assertion

1) Defendant A filed the instant lawsuit from August 2009, which was the date when the loan was performed against Defendant A, to July 8, 2009, and to April 11, 2017, which was seven years and four months after the date when the payment was made by the D Bank and E Bank from December 2009, which was the date when the reimbursement was made by the D Bank and E Bank. The Plaintiff asserted that the Plaintiff’s claim for damages arising from the Plaintiff’s tort was extinguished by the statute of limitations.

2) On the other hand, "the day on which the plaintiff knew of the damage and the perpetrator" under Article 766 (1) of the Civil Act, which is the starting point of the short-term extinctive prescription of the right to claim damages due to a tort, means the time when the plaintiff actually and specifically recognized the existence of an illegal act, such as the occurrence of damage, the existence of an illegal harmful act, and the existence of proximate causal relation between the occurrence of the harmful act and the damage. However, in the above time when the defendant A asserted as the starting point of extinctive prescription, it cannot be deemed that the plaintiff was aware of the existence of the illegal harmful act, and it is reasonable to deem that the plaintiff knew of the existence of the illegal harmful act only after the time when the plaintiff requested a inquiry that can confirm whether the plaintiff actually traded goods with the defendant, A

3. Judgment on the claim for the act of defraudation of the second loan

A. The parties' assertion

1) The plaintiff's assertion

Defendant A’s representative director: (a) the applicant for a loan for corporate purchase by presenting a false tax invoice and an electronic commerce contract, thereby deceiving and obtaining a loan from the D bank; (b) such act constitutes deception. In the absence of H’s deception, the loan for corporate purchase would not have been made; and (c) a proximate causal relationship is recognized as having been incurred by the Plaintiff by subrogation.

2) Defendant B and C’s assertion

After Defendant A assumes the obligation of KRW 150,00,00,000, which is another workshop that Defendant B actually assumed on behalf of Defendant B, Defendant A applied for a loan for corporate purchase to D Bank to repay the above obligation. Therefore, the tax invoice of KRW 150,00,00 issued by Defendant B cannot be deemed to be false, and in light of the process of issuing the tax invoice, Defendant A’s cooperation in Defendant A’s application for a loan for corporate purchase loan cannot be deemed to be tort. Thus, there is no proximate causal relationship between Plaintiff’s subrogation and Defendant B’s cooperative act.

B. Whether tort was established

According to the evidence No. 6-2, it is recognized that the credit guarantee certificate issued by the D Bank for Defendant A under the credit guarantee agreement that the Plaintiff is liable for guarantee only for the loan for corporate purchase funds under Article 2 of the Bank of Korea's total amount limit (hereinafter "the Handling Rules"). Meanwhile, the Handling Rules, which was enforced at the time of the preparation of the above credit guarantee certificate, defines the "loan for corporate purchase funds" as the "loan for the company that purchases the goods and services as an ordinary business activity consistent with its business purpose in relation to the transaction between the companies for which the above credit guarantee certificate was issued." Article 6 (3) provides that the lending applies only to the transaction for the goods to which the request for collection or delivery was made within 30 days from the date of issuance of the tax invoice, etc., and it is reasonable to view that the above loan is not consistent with the existing regulations for the purpose of collecting the loan funds by issuing the loan funds to Defendant B and it is reasonable to view that it is not consistent with the existing regulations for the purpose of collecting the loan funds.

C. Whether proximate causal relation is recognized

In determining the scope of compensation for damage caused by a tort, there is insufficient natural or factual causal relationship between the tort and the damage, and there should be an ideological or legal causal relationship (see Supreme Court Decision 2010Da15363, Jun. 10, 2010). Determination of the existence of proximate causal relationship should comprehensively take into account the probability of the occurrence of the result, the purpose and legal interest of the statutes and other rules of conduct imposing the duty of care, the form of the harmful act, the nature of the benefit from the infringement, the degree of damage, etc. (see Supreme Court Decision 2016Da237264, Dec. 15, 2016).

Under the following circumstances, Gap 4, 5, 6-2, 7-1, 2, and 8 evidence, comprehensively considering the overall purport of arguments, defendant A was issued a guarantee of this case from the plaintiff to obtain a corporate purchase loan; the plaintiff who was liable for an abstract guarantee by the letter of guarantee of this case was liable for specific guaranteed liability due to each of the loans of this case by the representative director H's deception; the actual defendant A cannot obtain a corporate purchase loan with the former obligation of the defendant Eul in accordance with the rules on the handling of corporate purchase loan; the defendant A received a corporate purchase loan from the bank with the false tax invoice different from the actual transaction; the defendant A received a corporate purchase loan from the bank; the defendant A's representative director's application by deception and not repaid corporate purchase loan from the bank; the defendant A's representative director's liability for damages incurred by the plaintiff's subrogation due to the loan of this case; the defendant A's act of deception and 14,000,000,000,000 won.

(d) Damage liability;

1) The Defendants, using a false tax invoice, deceiving a DNA bank by filing an application for a corporate purchase financing loan, and deceiving it by borrowing KRW 150,000 from a DNA bank. Accordingly, the Plaintiff, 142,50,000 among them, by subrogation, made the Plaintiff pay for the amount of KRW 142,50,000 (=150,000,000 X guarantee rate of KRW 95%). Thus, the Defendants are jointly liable to compensate for damages incurred by the Plaintiff’s subrogation.

Therefore, the Defendants jointly have a duty to jointly pay to the Plaintiff the amount of damages equivalent to KRW 142,50,000 equivalent to the Plaintiff’s subrogated amount, and to pay to the Plaintiff the amount calculated at each rate of 5% per annum under the Civil Act from November 16, 2009, which is the date of the Plaintiff’s subrogation, which is the date of November 16, 2009, where it is deemed reasonable to dispute as to whether the Defendants were liable for performance or not, and the scope thereof, until June 7, 2018, the date of the instant judgment, which is the date of the instant judgment, to the date of full payment.

2) As to this, Defendant B and C asserts that the Plaintiff should deduct the amount of money that the Plaintiff had already received from Defendant A, etc., but there is no evidence to acknowledge that the Plaintiff had received reimbursement of damages from Defendant A, etc. in relation to the instant case, the said assertion shall not be accepted.

3) Meanwhile, under the premise that loans for corporate purchase funds acquired by the Defendants are KRW 170,00,000, the Plaintiff concluded a lease contract with KRW 161,50,000 among them (i.e., KRW 170,00,000 x rate of guarantee 95%) and thus, the Plaintiff is seeking payment of KRW 150,00,00 among the damages incurred by subrogation of the Defendants. However, in full view of the Plaintiff’s tax invoice Nos. 3-1, 3-5, 5-3, 6-3, 7-2, 00, 70-7, 30-7, 40-7, 300-7, 400-7, 300-7, 40-7, 300-7, 509, 40-7, 209-7, 300-7, 400-7, 300-7, 309.

4. Conclusion

Therefore, the plaintiff's claim of this case against the defendants is accepted within the scope of the above recognition, and the remaining claim is dismissed as it is without merit. It is so decided as per Disposition.