2019Na13971 Loans

1. A;

2. B

Plaintiff 1 and 2’s address

3. C

4. D;

[Defendant-Appellant] Plaintiff LLC et al.

[Defendant-Appellant]

E

Ulsan District Court Decision 2018Da68430 Decided July 11, 2019

April 13, 2021

May 25, 2021

1. All of the plaintiffs' claims that were changed in exchange in this court are dismissed.

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

The judgment of the first instance is revoked. The defendant shall pay to the plaintiff A 12,00,000,000 won for each of the above 16,50,000 won for each of the above amounts and 16,50,000 won for each of the above amounts to the plaintiff A from November 22, 2017 to the date the judgment of this case is rendered and 5% per annum for each of the above amounts from the next day to the date of full payment (the plaintiff has changed the cause of the claim to the court in exchange for the claim for damages based on the illegal act).

1. Basic facts

A. On December 31, 2017, Plaintiff A got her friendship F residing at the time of the racing, and, at the time, the Defendant, the Easter F in F’s house, was found to have been her investment after hearing an explanation of the Bitcont, an investment company, the Bitcont, the Bitcont. The rest of the Plaintiffs, around January 6, 2018, was a restaurant operated by the Defendant’s women’s women living in Gwangju located in Gwangju, followed the Defendant, and sought an explanation of the Bitcont and sought an explanation of the Bitcont from the Defendant, and followed each investment.

B. On December 31, 2017, Plaintiff A transferred KRW 12 million to the bank account of the Defendant or the Defendant’s leisure G on January 6, 2018, respectively. The Defendant purchased bitcos through the business operation fee, which is the virtual currency exchange that the Plaintiffs remitted to the said money, and transferred the said money to the Plaintiffs’ personal location cards within the operating fee, but made it possible for the Plaintiffs to invest in the bitcos (hereinafter “investment in the said bitcos”).

C. On January 2018, 2018, the KONEX site was closed as a guard, and the Plaintiffs were unable to withdraw the profits earned through the said site or the Bitcoin invested by converting it into the KONEX.

D. On September 28, 2018, Plaintiff A, C, and D filed a complaint with the Defendant on the suspicion that the Defendant had obtained a total of KRW 61,50,000 by deceiving the Plaintiffs and acquired by deception, but the Prosecutor of the Gwangju District Prosecutors’ Office rendered a non-prosecution disposition (Evidence of Evidence) against the Defendant (hereinafter referred to as “related criminal case”).

[Reasons for Recognition]

2. The parties' assertion and judgment

A. Summary of the plaintiffs' assertion

The Defendant, when investing the Plaintiffs in the KON, can earn a profit of KRW 4 million in a month, and the principal may also be returned when four months elapse, attracting the Plaintiffs’ investment, but the KON as a typical private enterprise of the Financial Capital Markets Act, making it impossible for the Plaintiffs to raise profits or receive a refund of the investment amount, such as the Defendant’s explanation.

The Defendant, even though being aware of this, was negligent in not notifying the Plaintiffs of the risk of investment in KONEX. Therefore, the Defendant is liable to compensate the Plaintiffs for damages equivalent to the amount of the investment made by the Plaintiffs due to intentional or negligent tort.

B. Determination

The facts that the plaintiffs heard the defendant's explanation and made an investment in the KON are recognized as above. However, according to the following circumstances that can be acknowledged by adding the whole purport of the pleadings to the evidence mentioned above and the statements mentioned in subparagraphs 6 through 9 above, the plaintiffs suffered losses by investing in KON, due to the defendant's active solicitation of investment or attraction of investment, or the defendant's intent to deceive the plaintiffs, or the defendant's profits or the above profits are insufficient to be deemed to have a causal relationship with the plaintiffs' losses. Thus, it is insufficient to view that the evidence submitted by the plaintiffs alone was insufficient to deem that the defendant deceivings the plaintiffs and made an investment in KONEX. Even if not, it is insufficient to deem that the defendant was negligent in not notifying the defendant of the risk of investment in KON, and there is no other evidence to recognize this.

1) In light of the following points, it is difficult to readily conclude that the Plaintiffs invested in the KONEX due to the Defendant’s active investment solicitation or investment attraction.

① As seen earlier, on December 31, 2017, Plaintiff A met the Defendant at the KONF’s House and remitted money to the Defendant after hearing an explanation of KON. The rest of the Plaintiffs, upon finding the Defendant in Gwangju around January 6, 2018, wired money to the Defendant after hearing an explanation of KON. The circumstances in which the Defendant solicited or attempted to attract the Plaintiff to make the instant investment do not appear.

② On the contrary, when Plaintiff A came to know that he would have obtained considerable profits through an investment in the KONEX, it appears that Plaintiff C and D would have asked the Defendant for the investment method, etc. of the KON. At the time of investigating the replacement with the Defendant in a related criminal case, Plaintiff C and D stated to the purport that the investment decision of this case would not result in the Defendant’s final use of the investment of this case, on the grounds that Plaintiff C and D would like to inquire the police’s question, “(the Defendant),” “(the Defendant),” and “the Plaintiff’s horse was heard and invested.”

2) In light of the following, it is difficult to view that the Defendant had “the intent of the Plaintiff” against the Defendant, or the Defendant knew or could have known the closure of the KONEX site.

① The police in charge of investigating the Defendant’s suspicion of fraud in the relevant criminal case reveals the investigative opinion that “the Defendant received the Plaintiffs’ money on behalf of the Plaintiffs to transfer it to its own account, and generated IDs in the name of the Plaintiffs, which is the virtual currency exchange, and it is confirmed that the Defendant purchased the bitcos, which are virtual currency, and it does not seem to constitute a deception that the Defendant made the Plaintiffs omitted the Plaintiffs in mistake.”

② As seen earlier, the prosecutor of the Gwangju District Public Prosecutor’s Office held a non-prosecution disposition in relation to the relevant criminal case. In addition to the above police’s investigation opinion, the prosecutor changed the money received from the Plaintiffs into virtual currency and invested the money on the KONEX website, and made certain profits on the KONEX website, and paid some profits to the Plaintiffs. It is recognized that not only the Plaintiffs but also the Defendant’s money invested on the KONEX website was damaged due to unexpected reasons, so it is insufficient to acknowledge that the Plaintiffs’ assertion alone alone alone did not have an intent or ability to invest in the KONEX site, or that the Defendant acquired money from the KONEX under the KONEX by deceiving the Plaintiffs, and there is no other evidence to acknowledge the facts of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the Defendant.

③ The evidence submitted by the Plaintiffs alone is difficult to find the circumstance to deem that the Defendant knew that the KONEX site was immediately closed at the time it made the instant investment on the KON website with the amount remitted by the Plaintiffs.

④ The Defendant appears to have explained to the effect that, if the Plaintiff made an investment in the KON, KRW 3 to 4 million is punished for each month, and that the Plaintiff would be able to make profits equivalent to the principal after four months. However, according to the Defendant’s statement of transactions (Evidence 9) of KON, the Defendant’s investment in the KON, after July 25, 2017, was confirmed that the Defendant’s KONEX’s profits were continuously paid to the Defendant’s KONEX’s KON’s profits. On November 22, 2017, the Defendant paid KRW 40.1214756 KON 1 at one time on November 22, 2017. Based on such investment experience, the Defendant appears to have explained it to the Plaintiffs.

⑤ Above all, according to the Defendant’s aforementioned specification of KONEX, the Defendant recognized that most of the re-investment of the KONEX paid through the KONEX site was continued even after the Plaintiff’s investment, and the Defendant’s closure of the KON site on January 2018, thereby making it impossible to exchange or withdraw the KONEX’s own money, as in other non-tON investors. This is a flexible circumstance where it is difficult to deem that the Defendant, at the time of the Plaintiff’s investment, knew or could have known that the KON site would be immediately closed.

3) In addition, it is difficult to readily conclude that the Defendant obtained benefits with a causal relationship with the Plaintiffs’ damages as follows.

① The Defendant’s use in purchasing bitcos in the name of the Plaintiffs, and the fact that the Defendant opened an account in the name of the Plaintiffs on the KONEX and invested in the bitcos. As seen earlier, it does not seem that the Defendant separately acquired profits in the course of such transaction.

② The Plaintiffs appears to have received a certain amount of recommendation from the Defendant on the KONEX website due to their investment in the KONEX website. However, this appears to have been paid according to the promotional activities conducted to attract investment by the KONEX, which is a virtual currency investment company, and as long as it cannot be deemed that the Defendant was aware or could have known that the KON website would be immediately closed, it cannot be deemed that the aforementioned recommended user’s allowance received by the Defendant was a profit having a causal relationship with the damages and losses equivalent to the investment amount suffered by the Plaintiffs due to the closure of the KONEX website.

③ As seen earlier, the Defendant also suffered losses due to the closure of the KONEX website as well as the impossibility of exchanging or withdrawing the KONEX coaches as the Plaintiffs.

Ultimately, the evidence submitted by the Plaintiffs alone is insufficient to view that the Plaintiffs’ intentional or negligent tort liability is recognized against the Defendant regarding the loss equivalent to the investment amount due to the closure of the KONEX site.

3. Conclusion

Therefore, all of the plaintiffs' claims that have been changed in exchange in this court are dismissed as it is without merit. It is so decided as per Disposition (The plaintiff's claim for the return of loans was withdrawn by the exchange change of lawsuits conducted in this court and the judgment of the court of first instance was invalidated).

Judge Lee Jong-young

Judges Shin Sung-sung

Judges Park Jong-sik

1) At the time, it is deemed that it can be possible to ascertain whether the Defendant had paid the KONEX corresponding to the principal invested by the Defendant according to the value of KONEX, but it is difficult to confirm only the evidence submitted in the instant case. However, the Defendant appears to have considered it as KONEX of value corresponding to the principal amount.