Plaintiff 1 and two others (Law Firm Hannuri, Attorneys Ohn-soo, Counsel for the plaintiff-appellant)

Defendant (Attorney Hong Jin-jin, Counsel for defendant-appellant)

April 28, 2016

1. The defendant shall pay to the plaintiff 1 1 122,85,00 won, and to the plaintiff 2, and the plaintiff 3 122,857,000 won with 15% interest per annum from September 1, 2015 to the day of full payment.

2. The costs of the lawsuit are assessed against the defendant.

3. Paragraph 1 can be provisionally executed.

The same shall apply to orders and notes 1.

1. Basic facts

A. On February 199, the Defendant received KRW 450,000,000 from Nonparty 1 in relation to the establishment of Taecheon-si Co., Ltd. ( Address omitted) located at the time as the representative director of Taesung Construction Co., Ltd., which was in progress at the time.

B. Nonparty 1 died on July 21, 2003, and Plaintiff 1, his wife, and Plaintiff 2 and Plaintiff 3, respectively, inherited Nonparty 1’s property at the ratio of Nonparty 2: 2.

C. On December 29, 2004, the Defendant issued to the Plaintiffs a written confirmation that the amount of KRW 450,000,000 that was received from Nonparty 1, and on May 31, 2005, when receiving the amount scheduled to be paid from △△△ in relation to the Jeju Complex Corporation located in △△dong, the Defendant paid 1/3 of the amount to be received, and on May 31, 2005, prepared and issued a written confirmation that the shortage shall be paid at the time of business restructuring of the Defendant (hereinafter referred to as the “instant agreement”).

[Reasons for Recognition] Unsatisfy, Gap evidence Nos. 1, 2, Eul evidence Nos. 1, 2 and 4, the purport of the whole pleadings

2. Determination as to the cause of action

A. The parties' assertion

1) The plaintiffs' assertion

Of the instant agreement, the repayment of the Defendant’s business restructuring is not a condition precedenting the establishment of the obligation, but rather a specific method of performing the obligation to ensure the certainty of the performance of the obligation. Meanwhile, the Defendant, around 2010, repaid the Plaintiff 1 the amount of KRW 20,000,000, the remainder of KRW 430,000,000 (= KRW 430,000 x 3/7,000 x 3/7,000 x 3/7,000 x 3/7,000 x 3/7,000 x 122,857,000 x 430,000 x 2/7).

2) The defendant's assertion

Of the instant agreement, the repayment of the repayment from △△△, and the part concerning the Defendant’s business re-payment of the Defendant’s business falls under the suspension conditions with respect to the establishment of the Defendant’s monetary payment obligations. Since the Defendant was not paid the repayment from △△△ and the business re-payment was failed and the above suspension conditions have not been fulfilled, the Defendant is not obligated to pay the agreed amount

B. Determination

1) In the case of a juristic act to which an additional officer attached, if there is considerable reason to view that if the facts indicated in the additional officer do not occur, it should be subject to the condition that the obligations should not be performed. In a case where it is reasonable to view that the occurrence of the indicated fact should be performed not only when the indicated facts occur, but also when it has become final and conclusive if the objection does not occur, it shall be deemed that the fixed time limit is not fixed. Therefore, in a case where certain facts are attached to the repayment of the obligation already borne, barring any special circumstance, it shall be deemed that the time limit has been postponed, and the time period shall expire when the facts have occurred or it is determined not to occur (see Supreme Court Decision 2003Da24215, Aug.

2) In light of the above legal principles, in full view of the health stand, the above recognition facts, and the circumstances leading up to the conclusion of the instant agreement, it is reasonable to view that the Defendant’s payment of repayment from the △△△ out of the instant agreement, and the Defendant’s business re-payment part regarding the Defendant’s business, as long as the Defendant did not receive the amount scheduled to be paid from △△△ on May 31, 2005 or did not resume the business, it is not a condition of suspension under which the Defendant’s monetary liability

Furthermore, as long as the Defendant failed to pay the amount scheduled to receive from △△△ on May 31, 2005, it shall be deemed that the Plaintiffs and the Defendant did not receive the corresponding amount, and it shall be deemed that the period during which the obligation to pay the money under the instant agreement was due on June 1, 2005.

3) Accordingly, pursuant to the instant agreement, the Defendant is obligated to pay the Plaintiff 1 a 184,285,000 won (=430,000,000 won x less than 3/7,1,000 won x less than 3/7,000; hereinafter the same shall apply), Plaintiff 2, and Plaintiff 3, respectively, 122,857,000 won (=430,000,000 x 2/7) and each of them, calculated at the rate of 15% per annum under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings from September 1, 2015 to the date of full payment, after the duplicate of the instant complaint is served.

3. Judgment on the defendant's defense, etc.

(a) Extinctive prescription defense;

The defendant's defense that the contract amount claim of this case was extinguished after the ten-year extinctive prescription has expired.

In this case, the extinctive prescription period of the contract deposit claim of this case is ten years (Article 162(1) of the Civil Act), and as seen earlier, the maturity period of the above claim has arrived around June 1, 2005, and the fact that the lawsuit of this case was filed on August 21, 2015, which is ten years thereafter, is obvious in the record.

However, comprehensively taking account of the overall purport of the statements and arguments as to Gap evidence Nos. 3 and 4, it can be acknowledged that the plaintiff 1 served on February 27, 2015 by requiring the defendant to pay the agreed amount of KRW 10,000,000,000 for additional repayment of the agreed amount of KRW 10,000 on or around January 4, 2007, and it is evident that the lawsuit of this case was filed on August 21, 2015, which is within six months thereafter, and thus, the statute of limitations has been interrupted. Thus, the plaintiff's second defense pointing this out has merit, and the defendant's second defense is without merit (Meanwhile, the plaintiffs paid KRW 450,00,000 to plaintiff 1 on or around the same year; KRW 10,000,000 for additional repayment of the agreed amount of KRW 10,000,000 for the same year; and there is no evidence to acknowledge that the statute of limitations has run from that date.

(b) Cancellation of donation contracts;

In addition, the defendant asserts that the agreement of this case is a gift contract under which the defendant grants 450,000,000 won to the plaintiffs free of charge, and that the defendant's property status is significantly changed after the conclusion of the contract of donation and the performance of the contract of this case significantly affects his livelihood due to the fulfillment of the obligation of the contract of this case. Thus, the defendant asserts that the agreement of this case is cancelled by the delivery of the preparatory document dated December 24, 2015 in accordance with

In light of the circumstances where the Defendant received 450,000,000 won from Nonparty 1 and carried out the construction of the Thai Engineering Factory, and Nonparty 1 died, and the Defendant entered into the instant agreement with the Plaintiffs, the heir, to return the said money, etc., it is difficult to view the instant agreement as a mere donation contract that the Defendant would give property free of charge to the Plaintiffs, because it was performed under the legal duty of payment.

Therefore, the defendant's above assertion based on the premise that the agreement of this case is a gift contract that grants property free of charge is without merit.

4. Conclusion

Therefore, the plaintiffs' claim of this case is reasonable, and it is so decided as per Disposition.

Judges Shin Jae-in (Presiding Judge)

Note 1) The purport of the instant complaint is indicated as claiming KRW 122,857,100, respectively, to Plaintiffs 2 and 3. However, in light of the description of the cause of the instant complaint, it appears to be a clerical error in the “122,857,000”.