1. The defendant's appeal is dismissed.

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

Purport of claim and appeal

1...

1. Basic facts

A. On August 1, 2015, the Plaintiff entered into a seafarer labor contract with the Defendant by setting advance payment amounting to KRW 20 million. Accordingly, the Defendant received from the Plaintiff the total sum of KRW 10 million around August 1, 2015, and KRW 20 million around August 3, 2015.

B. On May 31, 2017, the Defendant was issued a summary order of KRW 5 million (the Changwon District Court Tongwon Branch Decision 2017 High Court Decision 201Da1821, and the above summary order was finalized on June 27, 2017) due to the criminal fact that the Defendant, in collusion with C and D, concluded a seafarer labor contract and acquired advance payment even though he did not intend to do so.

[Ground of recognition] Facts without dispute, entry of Gap evidence 1 to 3, purport of the whole pleadings

2. Determination

A. The defendant's judgment on the main defense of the defendant's main defense is not a party to a seafarer labor contract with the defendant, and thus, the plaintiff is not a party to the lawsuit of this case, and thus, the lawsuit of this case

In a lawsuit for performance, the standing to sue lies in a person who asserts that he/she has the right to demand performance, and whether the right to demand performance exists is to be proved by the deliberation on the merits (see Supreme Court Decision 2003Da44387, 44394, Oct. 7, 2005). It is apparent that the lawsuit in this case constitutes a lawsuit for performance. Thus, the issue of whether the plaintiff has standing to sue solely on his/her own assertion, and whether the plaintiff has the right to demand performance against the defendant is to be determined within the main issue.

Therefore, the defendant's defense prior to the merits is without merit.

B. According to the above findings of the judgment on the merits, the Defendant received advance payment from the Plaintiff even though the Defendant did not intend to board the merits, and acquired it by fraud, this constitutes tort against the Plaintiff.

Therefore, the defendant bears the duty to return to the plaintiff the advance payment amounting to KRW 20 million which he acquired by himself.

In this regard, the defendant only 5 million won out of the above advance payment, and the remainder had C and D as co-offenders of the crime of fraud.