2020Na2018215 Agreements

A

Attorney Lee Young-young, Counsel for the defendant-appellant

B

Law Firm LLC, Kim & Lee LLC, Attorneys Seo Han-chul and Park Young-young, Counsel for the defendant-appellant

Seoul Central District Court Decision 2018Gahap5641 Decided May 29, 2020

2020, 10.29

2020, 11, 19

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the Plaintiff.

1. Purport of claim

The defendant shall pay to the plaintiff 790 million won with 15% interest per annum from the day after the delivery of a copy of the complaint of this case to the day of complete payment.

2. Purport of appeal

The judgment of the first instance is revoked. The defendant shall pay to the plaintiff 790 million won with 12% interest per annum from the day following the delivery of a copy of the complaint of this case to the day of complete payment.

1. Basic facts

A. On November 29, 2012, the Plaintiff-type C purchased 20,000 won of shares of D Co., Ltd. (hereinafter “D”) for which the Defendant was the representative director from the Defendant.

B. From February 4, 2014 to March 26, 2014, the Plaintiff remitted a total of KRW 900 million to D’s account as D’s investment proceeds.

C. On September 12, 2014, the Plaintiff and C drafted a written agreement with the Defendant regarding the recovery of KRW 1.1 billion (hereinafter “instant agreement”) as follows (hereinafter “instant agreement”). On the same day, the Defendant paid KRW 10 million to the Plaintiff and C pursuant to paragraph (3) of the instant agreement.

The shareholders A(Plaintiff) and C of the Agreement Co., Ltd. shall make an agreement on the recovery of investments of 1.1 billion won (A.90 million won and C.200 million) invested through capital increase with capital increase.The following is that the representative director B of the Resolution Co., Ltd shall make every effort to recover investment funds, and the method and period of recovery shall be discussed and determined later.2. Both parties shall not raise any civil or criminal objection related to the above case, and if they raise a civil or criminal objection, they may file a subsequent repayment for the amount already paid by the agreement.3. The agreement of the above 1.1.2 shall be established by depositing KRW 110 million into the account designated by the shareholders.

[Ground of recognition] Facts without dispute, Gap evidence 1, 2, and 4 (including paper numbers; hereinafter the same shall apply), Gap witness C's testimony and the purport of the whole pleadings

2. The party's assertion and judgment

A. The parties' assertion

The Plaintiff filed a claim against the Defendant for the unpaid KRW 790 million (i.e., KRW 90 million - KRW 110 million - KRW 100 million) and damages for delay after deducting KRW 110 million paid pursuant to paragraph (3) of the instant agreement from the amount of 90 million in terms of the return of the investment amount under the instant agreement. Accordingly, the Defendant only drafted the instant agreement at the level of intentional liability for the return of the investment amount, and thus, does not bear any legal liability. Even if the Plaintiff and C are liable for the legal liability under the instant agreement, the validity of the instant agreement was extinguished by raising several objections and criminal charges related to the return of the investment amount, and thus, the Plaintiff cannot comply with the Plaintiff’s claim.

B. Determination

1) Interpretation of a juristic act is to clarify and confirm the objective meaning given by the parties to the act of expression, and it does not mean that the objective meaning given by the parties to the act of expression in writing should be reasonably interpreted according to the contents of the document regardless of the parties’ inner intent. In a case where the objective meaning is not clearly expressed by the party’s language, it shall be reasonably interpreted in accordance with logical and empirical rules, social common sense and transaction norms so that it conforms to the ideology of social justice and equity, by comprehensively taking into account the contents of the text, the motive and circumstances leading up to the juristic act, the purpose and genuine intent to be achieved by the juristic act, transaction practices, etc. In a case where the text stating that “I would make best efforts.” Unless there are any special circumstances, the objective meaning of the phrase as mentioned above should be expressed by the party to the act of expression in writing, unless there is any special circumstance, it should be interpreted that the parties should have no legal obligation to use it, and thus, it should be interpreted that the parties should have no legal obligation to use it.

2) In full view of all the following circumstances that can be recognized by comprehensively taking account of the aforementioned legal principles and the facts acknowledged earlier, the statements in Gap evidence Nos. 1 through 5, and Eul evidence No. 1 and the overall purport of testimony and arguments by the witness of the trial party C, the evidence submitted by the plaintiff alone is difficult to acknowledge that the defendant bears the duty to return the investment amount pursuant to the agreement of this case, and there is no other evidence to acknowledge this otherwise, the plaintiff'

A) Article 1 of the instant agreement provides that “B shall make every effort to recover the investment amount, and the methods and timing for collection shall be discussed and determined later.” However, in light of the objective language, it is difficult to readily conclude that the Defendant clearly expresses his intent to return the total investment amount, in addition to the meaning that the Plaintiff and C shall be held liable for the recovery of the investment amount and make efforts to recover the investment amount.

B) The Plaintiff remitted total amount of KRW 900 million to D account, not the Defendant’s personal account, as the investment funds for D, and drafted the instant agreement as D’s shareholder status. In addition, the Defendant signed the instant agreement as D’s representative director.

In light of the Stockholm statement submitted by the Plaintiff as documentary evidence (Evidence 3), it was difficult for the Defendant to send the message to the Plaintiff on October 23, 2014, as stated above, “A” with KRW 110 million on December 2014, KRW 10 million on March 2015, KRW 220 million on June 2015, KRW 275 million on September 2015, and KRW 275 million on December 2015, and KRW 150 million on December 2015, it was difficult for the Defendant to promptly arrange the above investment issue, but it was difficult for the Defendant to resolve the conflict between the Plaintiff and the Plaintiff’s business plan and the method of return of the message.”

In light of this, since the agreement in this case, the defendant did not seem to have made efforts to recover investment funds to the extent that D's financial standing is permitted, as well as to bear legal obligations in accordance with the agreement in this case.

C) The Plaintiff asserts that, in light of the fact that C, as an investor of D, was returned from the Defendant on August 30, 2019 and around that time after the agreement of this case, the Plaintiff asserts that the Defendant bears the duty to return the investment amount under the agreement of this case.

However, on June 8, 2015, after the instant agreement, C entered into a share acquisition agreement with the Defendant to sell KRW 30,000,000 to KRW 200,000 (Evidence 5 of A), and thereafter, on August 2, 2019, the Defendant paid KRW 5,00,00 to C by August 30, 2019 (Seoul Central District Court Decision 2018Da5278026, Seoul Central District Court 2019). Accordingly, C received the said money from the Defendant. Accordingly, it is difficult to deem that the Defendant fulfilled the obligation to return the investment amount under the instant agreement and thereby, it is difficult to deem that C fulfilled the obligation to return the investment amount.

3. Conclusion

The plaintiff's claim shall be dismissed as it is without merit. The judgment of the court of first instance is just in its conclusion, and the plaintiff's appeal is dismissed as it is without merit.

The presiding judge, judge and charter

Judge Lee Jae-chul

Judges Kim Young-young