2011AD 4739 (main office) Confirmation of the existence of an obligation

201A. 8144(Counterclaim)

(1959years)

Gwangju

Attorney Lee Do-young

△△△△△ (1955)

Gyeongsan-si

Attorney Lee Do-young

May 15, 2012

June 5, 2012

1. On March 25, 2002 between the Plaintiff (Counterclaim Defendant) and the Defendant (Counterclaim Plaintiff), it is confirmed that there is no liability to pay damages amounting to KRW 300,000,000, which the Plaintiff (Counterclaim Defendant) bears against the Defendant (Counterclaim Plaintiff) on the basis of the payment note on March 25, 2002.

2. The defendant (Counterclaim plaintiff)'s counterclaim is dismissed.

3. The costs of lawsuit are assessed against the Defendant-Counterclaim Plaintiff by aggregating the principal lawsuit and the counterclaim.

The main office is as set forth in Paragraph (1).

Counterclaim: With respect to KRW 300,000,000 among them and KRW 100,000,000,000 from December 21, 2002 to the Defendant (Counterclaim Plaintiff; hereinafter “Defendant”), the Plaintiff (Counterclaim Defendant; hereinafter “Plaintiff”) shall pay 300,000,000 to the Defendant (Counterclaim Plaintiff; hereinafter “Defendant”), 50,000,000 won from December 21, 2003 to December 21, 2004; 50,000,00 won from December 21, 2004 to December 5, 200, with respect to KRW 50,000 from December 21, 2005 to December 21, 2006 to each of the instant counterclaim, 50,000 per annum from the next day to December 20, 200.

The principal lawsuit and counterclaim shall be judged together.

1. Basic facts

A. The plaintiff is a doctor who operated '○○○○○○○' in the front-nam mother-gun form around September 2001, and the defendant is a high school-friendly wife of the plaintiff, who was under the operation of '○○○○○○○○○○' on both sides of the plaintiff (hereinafter referred to as "the instant operation").

B. On September 26, 2001, the Plaintiff performed the instant surgery free of charge against the Defendant, and on the wind that caused the error of the surgery, problems relating to the functional part and beauty art of both sides were occurred to the Defendant. Accordingly, on October 2001, the Defendant underwent a re-operation in the individual sexual surgery located in Gwangju on the first half of October 2001, and the said re-operation cost was borne by the Plaintiff.

D. The Defendant: (a) entrusted the Defendant’s agreement on compensation for damages related to the instant surgery to △△△△△△△△, the Defendant, on October 18, 2001, the Defendant agreed to the effect that “the Plaintiff shall preferentially pay KRW 100 million to the Defendant as compensation for damages related to the instant underwater alcohol, and shall pay KRW 50 million if the Plaintiff is under the Defendant’s real name after the vehicle; (b) according to the demand of OO and 77, the Plaintiff shall be 100% of the Plaintiff’s mistake as to the instant underwater alcohol, and that “the Plaintiff shall be 100% of the Plaintiff’s mistake as to the instant underwater alcohol in the absence of sufficient preparation as a doctor; and (c) drafted a written statement to the effect that the Defendant wishes on all matters that occur after the vehicle.”

E. The Plaintiff paid KRW 100 million to the Defendant from November 2001 to December 2001 in accordance with the above agreement.

F. Around March 25, 2002, the Plaintiff drafted a letter stating that “the Plaintiff paid a total of KRW 100 million to the Defendant on December 20, 2002 as the agreed amount of the instant surgery (hereinafter “each letter of this case”) on December 20, 2002, 10 million won as the amount of KRW 50 million on December 20, 2003, and KRW 50 million on December 20, 2004.

G. On December 20, 2002, when the Plaintiff was requested by the Defendant to pay KRW 100 million under each of the instant agreements and to notary acts on each of the instant agreements, the Plaintiff was only the husband of the Defendant and the Defendant at a multi-face near the Gwangju District Court on December 20, 2002. On that spot, the Plaintiff refused to pay the above KRW 100 million to the Defendant, which was declared to be revoked by coercion.

H. On February 7, 2011, the Defendant filed an application with the Gwangju District Court for a payment order claiming the payment of the agreed amount under each of the instant notes against the Plaintiff, but withdrawn the said payment order on February 11, 201.

(i) On June 201, the Plaintiff filed a complaint against the Defendant on the ground that the Defendant’s application for the above payment order constitutes fraud in a lawsuit, but the Daegu District Prosecutors’ Office decided on March 30, 2012, that the content of the application can not be determined as invalid as a juristic act which obviously loses fairness as alleged by the Plaintiff, on the ground that there is no evidence to deem that the Defendant’s assertion in the lawsuit was objectively apparent or that the Defendant applied for the above payment order with the knowledge that his assertion in the lawsuit was obviously false on March 30, 2012.

[Ground of recognition] 1 to 11, 13 evidence Nos. (including a branch number, if any) 3, video of evidence Nos. 1 to 3, witness testimony, and purpose of the whole oral argument

2. The parties' assertion

The plaintiff asserts that since each of the instant agreements was prepared by the plaintiff by the coercion of △△ (the defendant's agent), the plaintiff's expression of intent under each of the instant agreements constitutes an expression of intent by coercion, and that the agreement under each of the instant agreements was lawfully revoked upon the plaintiff's arrival of his/her expression of intent on December 20, 202. Thus, the plaintiff asserts that the agreement under each of the instant agreements is invalid under Article 103 or 104 of the Civil Act (other than the plaintiff, the agreement under each of the instant agreements is asserted as null and void under Article 103 or 104 of the Civil Act)

In regard to this, the defendant asserts that the contract of this case was null and void pursuant to Article 103 or 104 of the Civil Code at the time of the preparation of the letter of this case, and that the plaintiff's assertion is without merit, and that the plaintiff is claiming for the payment of the sum of KRW 300 million and damages for delay pursuant to the letter of this case against the plaintiff.

3. Determination

살피건대, 앞서 든 각 증거 및 이 법원의 · · · 성형외과에 대한 사실조회결과, 이 법원의 국민건강보험공단 대구지역본부에 대한 각 문서제출명령회신결과 및 변론 전체의 취지를 종합하면, ① 피고의 대리인인 □□□, ▽▽▽은 2002. 3. 25.경 밤에 원고의 '박신면의원'에 찾아왔고, 그 당시 □□□은 원고에게 이 사건 수술에 대한 합의금 지급을 요구하면서 "내가 당신은 죽일거니까 그렇게 알고 있어. 당신이 그런 식으로 나오면 내가 죽일 거야. 나는 내가 모든 걸 포기하는 한이 있더라도 우리 가족들은 모든 걸 포기하는 한이 있더라도 나는 그냥 안놔둬. 내 인생을 포기하는 한이 있더라도 내가 사형수 당하는 한이 있더라도 나는 그렇게 못한다니까. 차라리 당신은 그렇게 할 바에는 차라리 죽어버리시오. 차라리 죽어버려. 그런 식으로 할라면. 개새끼야. 너는, 너는 죽어부러! 개새끼가 완전히 나를 갖다가 갖고 놀라고 이 좆만한게, 말하는 게, 그런 것 같애. 뭐, 당신 분명히 저번에 말했지? 다음에 와 가지고 뭐하면 뚜들어맞을 각 오하고 있다고. 너는 내가 오늘 죽일라고 왔어. 알았어? 당신이 그렇게 나올까봐 내가 죽일라고 왔다니까 오늘."라는 등의 협박을 하였던 사실, ② 이 사건 각서 작성 당시 이후로 현재까지 피고가 이 사건 수술로 인하여 실명을 하였다거나 피고에게 별다른 후유증이 발생하지는 않았고, 원고는 이 사건 각서 작성 전에 이미 피고에게 이 사건 수술로 인한 잘못으로 1억 원의 합의금을 지급하였던 상황임에도 불구하고, □□□은 원고에게 합의금 3억 원을 추가적으로 요구하였던 사실, ③ 이 사건 각서가 작성될 당시에 '000의원'에서 숙박 중이던 증인 · · · 역시 이 법정에서 '자신도 당시 상황이 너무 무서웠고, 신변의 위협까지 느낀 나머지 함부로 대기실로 나갈 엄두도 내지 못하고 다시 숙소로 돌아갔다."라고 증언하고 있는 사실을 인정할 수 있고, 위와 같은 이 사건 각서의 작성 경위, 이 사건 수술의 내용 및 경과, 원고가 피고에게 지급한 합의금의 액수 및 이 사건 각서상의 합의금 액수 등을 종합하면, 이 사건 각서는 그□□의 강박에 의하여 작성되었다고 봄이 상당하다. 그렇다면 원고의 이 사건 각서에 의한 의사표시는 강박에 의한 의사표시에 해당하고, 위 기초사실에서 본 바와 같이 이 사건 각서에 의한 의사표시를 취소한다는 원고의 2002. 12. 20.자 의사표시의 도달에 의하여 이 사건 각서에 따른 원고와 피고 사이의 약정은 적법하게 취소되었다고 할 것이다.

Therefore, in relation to each of the instant statements, the Plaintiff did not have any obligation against the Defendant, and as long as the Defendant contests the existence of the above obligation, the Plaintiff’s above assertion is reasonable, and the Defendant’s above assertion and counterclaim claim are without merit (as long as the Plaintiff’s revocation claim is acknowledged, it is not determined separately as to the allegation of invalidation that the Plaintiff asserts as a matter of choice).

4. Conclusion

Therefore, the plaintiff's claim of the principal lawsuit is justified, and the defendant's counterclaim is dismissed as it is without merit. It is so decided as per Disposition.

The presiding judge, judge and Dong judge

Judges Park Jae-min

Judges Dok-Ba