Plaintiff (Law Firm Lee & Lee LLC, Attorneys Kim Jong-hoon et al., Counsel for the plaintiff-appellant)

Defendant (Law Firm Lee & Lee, Attorneys Lee Hun-hoon et al., Counsel for defendant-appellant)

November 7, 2019

Seoul Southern District Court Decision 2018Gahap108675 Decided January 18, 2019

1. Each appeal filed by the plaintiff and the defendant is dismissed.

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

1. Purport of claim

The defendant shall pay to the plaintiff 754,810,179 won with 15% interest per annum from April 15, 2017 to the day of complete payment.

2. Purport of appeal

A. The plaintiff

The part against the plaintiff falling under the order to pay under the judgment of the court of first instance shall be revoked. The defendant shall pay to the plaintiff 419,338,989 won and 15% interest per annum from April 15, 2017 to the date of full payment (as can be stated in accordance with the general principle in the purport of appeal).

B. Defendant

The part against the defendant in the judgment of the first instance is revoked, and the plaintiff's claim corresponding to the revocation is dismissed.

1. Quotation of the first instance judgment

The reasoning of the judgment of this court is as follows, except for the addition of the judgment on the assertion that the plaintiff and the defendant stressed or added in the trial at the trial, as set forth in paragraph (2), and therefore, it is citing the summary of the judgment pursuant to the main sentence of Article 420 of the Civil Procedure Act.

2. Additional determination

A. Summary of the plaintiff's assertion

The Defendant delegated Nonparty 2 with all the authority regarding the conclusion of the instant sales contract through the instant promise, and at the time of the secondary down payment, the Plaintiff and Nonparty 2 indicated that “the Plaintiff and Nonparty 2 were the recipient” as the receipt prepared by Nonparty 1. Thus, the Defendant should be deemed to have received KRW 1/2,50,000 from the secondary down payment via Nonparty 2, who is his agent, through Nonparty 2.

B. Summary of the defendant's assertion

While the Plaintiff did not submit materials proving that the Defendant received the instant down payment, the Plaintiff stated in the record (No. 1) submitted in the first return lawsuit and the content of Nonparty 1’s testimony (No. 2) in the preceding subrogation lawsuit that “the Plaintiff has received the down payment of this case,” it shall be deemed that all the first down payment was paid to the Plaintiff.

Even if Nonparty 2 received KRW 1/2,00,00, out of the first down payment from Nonparty 1, in light of the content of the additional promise document prepared along with the instant promise document, in order to facilitate the conclusion of the instant contract, the Defendant prepared the instant promise document with an intention to delegate only the authority to conclude the sales contract to Nonparty 2, and was not prepared by the intention to delegate the authority to receive the instant down payment to Nonparty 2. Thus, Nonparty 2 received the instant down payment from Nonparty 1, the said KRW 250,00,000, which was paid by Nonparty 1, does not affect the Defendant.

(c) Markets:

In full view of the following legal principles, various circumstances, and grounds, the first instance judgment that deemed that the Plaintiff received KRW 250,000,000,000 for each of the first down payment, and KRW 250,000 for the second down payment, is justifiable, and there is insufficient ground, circumstance, data, and evidence to change the first instance judgment in the appellate trial that is a fact-finding court, and each of the above arguments between the Plaintiff and the Defendant is difficult to accept.

1) In a civil trial, even though it is not bound by the facts recognized in a judgment on other civil cases, etc., the facts established in the relevant civil case which has already been established shall be valuable evidence unless there are special circumstances, and it shall not be rejected without reasonable grounds (see Supreme Court Decision 2008Da92312, 92329, Sept. 24, 2009).

2) According to the Plaintiff’s claim against Nonparty 2 and Nonparty 2’s claim against the Defendant in the preceding subrogation lawsuit, the process of acquiring the instant real estate and the process of concluding the instant sales contract were determined. The said appellate court recognized that “The first down payment amount of KRW 500,000,000 was paid to the Plaintiff and the Defendant ( Nonparty 2 received the said money as the Defendant’s agent, and Nonparty 1 received the said money, and the second down payment was paid to the Plaintiff on May 31, 2013, respectively.” The said judgment became final and conclusive.

3) In light of the following circumstances, it is insufficient to view that the Defendant’s assertion and submitted evidence alone that the final judgment and factual relations should be recognized differently from the final judgment of the preceding subrogation lawsuit, in light of the following circumstances acknowledged by comprehensively taking account of the following circumstances, i.e., the evidence mentioned above, and evidence No. 4 as well as the overall purport of the pleadings.

A) On May 8, 2013, the following day after the receipt of the instant undertaking, Nonparty 2 entered into the instant sales contract with the Plaintiff and the Defendant on behalf of the Plaintiff and the Defendant, and received the first down payment, and in that process, Nonparty 2 entered “non-party 1,” and written a receipt stating the names of the Defendant and Nonparty 2. In such a situation, it is difficult to understand that Nonparty 2 would pay the first down payment only to the Plaintiff, even though there is no special circumstance.

B) The record (Evidence No. 1) and the content of testimony (Evidence No. 2) submitted in the first return lawsuit by Nonparty 1 stated that “the plaintiff has received the down payment of this case” in the contents of testimony in the preceding lawsuit by subrogation (Evidence No. 2). However, as seen earlier, the first down payment was paid to the plaintiff and Nonparty 2, and the distribution of the first down payment was made through Nonparty 2. Thus, it cannot be readily concluded that Nonparty 1 could have clearly known how the first down payment was distributed between the plaintiff and the defendant.

C) On the day of the completion of the instant undertaking, Nonparty 2 prepared and delivered an additional letter of commitment by Nonparty 2, stating that “The Defendant, for the convenience of the sale and purchase of land, buildings, or the said terms and conditions, and power of attorney, with respect to the instant real estate to Nonparty 2, shall be held liable for civil and criminal liability, and shall be held in the presence of the Defendant at the time of the payment of the said terms and conditions.” In full view of the contents of the said additional letter of commitment and the text of the instant promise, the Defendant shall delegate the authority related to the conclusion of the instant sales contract to Nonparty 2 pursuant to the instant promise, and at least regarding the receipt of the purchase price, may be interpreted as requiring confirmation by the Defendant. However, there is no evidence to deem that Nonparty 2 received the first down payment regardless of the Defendant’s intent.

D) Considering that ① the Plaintiff received 1/2 of the down payment in the first place, ② the Plaintiff and the Defendant owned 1/2 shares of the instant real estate at the time of the conclusion of the instant sales contract, ③ it is reasonable to deem that the right holder of real estate has the rights and obligations corresponding to his share in the real estate, ④ it is presumed that the share in the first place down payment is equal, and ④ it is assumed that the share in the first place down payment is equal, and thus, it is reasonable to deem the internal share to be 1/2.

4) We examine the second down payment, and even if Nonparty 2 was entitled to receive the instant down payment as the representative of the Defendant, as alleged by the Plaintiff, in light of the following: (a) the receipt prepared at the time of payment of the second down payment is written only by the Plaintiff’s name and there is a difference between the receipt of the first down payment with each signature of the Defendant and Nonparty 2; (b) Nonparty 1 delivered the second down payment to the Plaintiff in addition to the first down payment lawsuit; and (c) Nonparty 2 cannot be readily deemed to have received part of the second down payment as the Defendant’s representative solely on the ground that Nonparty 2 was at the scene of receiving the second down payment with the Plaintiff, it is insufficient to deem that the Plaintiff’s assertion and the evidence alone proves that there was a special circumstance to deem that the final judgment and fact-finding of the prior down payment ought to be recognized differently.

3. Conclusion

The plaintiff's claim shall be accepted within the scope of the above recognition, and the remaining claims shall be dismissed as it is without merit. Since the judgment of the court of first instance is justifiable with this conclusion, both the plaintiff and the defendant's appeal are dismissed as they are without merit. It is so decided as per Disposition.

Judges Embrypon (Presiding Judge) Lee Woo-won