(영문) 서울중앙지방법원 2012.11.2.선고 2011가합58300 판결

A. As to KRW 94, 160, and KRW 5,400 among them, and KRW 00 from October 22, 2009, KRW 13,500, and KRW 00 from March 16, 2010 for KRW 94, 160, KRW 4, 410, and KRW 00.

13. From October 8, 2010 to November 2, 2012, for KRW 5,850, for KRW 00, from July 30, 2010 to KRW 25,00, for KRW 00, from September 8, 2010 to KRW 40,00, and from November 2, 2012, 5% per annum from October 8, 201 to KRW 20, for KRW 20 per annum from the next day to the day of full payment; and (b) for KRW 96, 620,00 among them, and KRW 2,00,00, for KRW 2,000 to the Plaintiff ○, from October 21, 201 to the day of full payment; and (c) for KRW 30,00 to KRW 30,00; and for KRW 2,00 to 30,501; and

2. As regards KRW 3, 150, and KRW 00, from August 13, 2010, KRW 4,050, and KRW 00.

9. From 27. to November 2, 2012, 5% per annum and 20% per annum from the next day to the day of full payment; and

C. As to KRW 140,00, KRW 00, and KRW 23,500 among them, and KRW 00 from July 1, 2009; KRW 112,00; and KRW 00 from August 24, 2009; KRW 4,500, and KRW 000.

5. To November 2, 2012, 5% per annum and 20% per annum from the next day to the day of full payment.

2. The plaintiffs' remaining claims are dismissed.

3. 1/10 of the costs of lawsuit shall be borne by the Plaintiffs, and the remainder by the Defendant, respectively.

4. Paragraph 1 can be provisionally executed.

Purport of claim

Plaintiff Ansan-○: the Defendant’s KRW 103,400,000 among them, and KRW 6,000 among them, and KRW 00 on October 22, 2009

for ter, 6,00,000 won from April 1, 2010, 15,000, and 00 won on March 16, 2010

Zter, 4, 900, 000 won from April 13, 2010; 6, 500, and 00 won on July 30, 2010

For ter, 25,00, 000 won from September 8, 2010, 40, 000, and 00 won on October 8, 2010

ter 5% per annum from the next day to the day of delivery of a copy of each complaint of this case, and 5% per annum from the next day to the day of full payment

20% interest shall be paid in 20% interest, and each interest set forth in the separate sheet shall be delivered.

Plaintiff ○○: the Defendant’s KRW 97,800,000 among them, KRW 2,000 among them, and KRW 00 from April 21, 2010 to:

84,000,000 won from May 31, 2010, 3,800, and 00 won from August 2, 2010:

For KRW 3,500,000, KRW 4,500 from August 13, 2010, KRW 500, and KRW 00 from September 27, 2010.

Until the delivery date of a copy of the complaint of this case, 5% per annum, and 20% per annum from the following day to the date of complete payment.

The payment of each proportion of money shall be made.

Plaintiff Park ○-○: the Defendant’s KRW 143, 500, 000 among them, KRW 45,000 among them, and KRW 00 on October 4, 2007

Zter, 20, 880, and 00 won shall be from November 29, 2007, 46, 120, and 00 won on August 24, 2009.

From July 1, 2009, from July 1, 2009, from 5,000, and from 00 won on August 5, 2010

ter 5% per annum from the next day to the day of delivery of a copy of each complaint of this case, and 5% per annum from the next day to the day of full payment

20% interest shall be paid in 20% interest.

Reasons

1. Basic facts

A. Status of the parties

The defendant is operating ○○○ City Oral Austrian Private Teaching Institutes. The defendant received a request from the plaintiffs to teach children, and gave guidance to the children of the plaintiffs.

B. Around March 2009, Plaintiff ○○ and the Defendant’s transaction relationship (1) purchased 10 million won listed in [Attachment List 1] from the Defendant, and sold 300,000 won, around October 201, 200. (2) The Defendant leased 1/40,000 of the rent for 3 million won in total for 6 months around March 2009; 30,000,000 won for 1/40 of the rent for 300,000 won for 30,000 won for 30,000,000 won for 40,000 won for 30,000,000 won for 1/4,000 won for 30,000 won for 20,000 won for 30,000 won for 20,000 won for 30,000 won for 30,000 won for 20,00.

(4) On March 2010, the Defendant leased an annual rent of KRW 6,00,00,000 to the Plaintiff Ansan○○○ for six months.

(5) On April 2010, the Defendant leased the Plaintiff Ansan○○○ in total of KRW 4,90,000,000,000 for the rent of KRW 3/4,000,000 for KRW 1/2,000,000 for the rent of KRW 6,50,000,000 for the rent of KRW 3/4,000,000 for the rent of KRW 4,90,000 for the Defendant, respectively.

(6) Around September 2010, the Defendant sold to ○○○○○, respectively, a pool of KRW 25 million, and around October 2010, a pool of KRW 80,000,000. Around September 31, 2010, an amount of KRW 10,000,000, and KRW 15,000,000,000 on September 8, 2010, and KRW 7,000,000 on October 7, 2010, and KRW 40,000,000,000 out of the price was paid to the Defendant, respectively.

C. Around 2009, Plaintiff Lee ○ and the Defendant’s transaction relation (1) purchased KRW 1/2 of the 1/2,000,000 from the Defendant and paid KRW 4 million out of the purchase price to the Defendant around March 12, 2009, but did not receive the 200,000,000 from the Defendant. around May 2010, the Defendant sold KRW 84,000,000 from the 200,000,000,000 won from the 4,000,000,000,000 won received as the purchase price of the above 1/2,000,000,000 won from the Defendant. Accordingly, this was paid to the Defendant with the purchase price of the above 200,000,000 won as the purchase price of the 200,50,000,000 won.

(2) Around April 2010, the Defendant sold 1/2 of 200,000 to ○○○○○○, respectively, with the purchase price of KRW 1.0 million on April 12, 2010 and KRW 1 million on April 21, 2010.

(3) The Defendant: (a) around July 2010, the Plaintiff leased the Plaintiff’s ○○○ for four months a total of KRW 3.8 million; (b) around August 2010, KRW 1/4 of the rent for three months; and (c) around August 2010, KRW 3.5 million for three months, the Plaintiff’s ○○ paid the Defendant the rent of KRW 3.8 million on August 2, 2010 and KRW 3.5 million on August 13, 2010, respectively; (d) the Defendant leased the Plaintiff’s 200,000,000 won on a total of KRW 1/40,000,000,0000,0000 to KRW 4.5,000,000,000,0000,0000,0000,000 won; and (d) the Defendant paid the remainder of KRW 1/5,205,005,00.

D. Around October 2007, the Defendant sold a pool of KRW 75 million to Plaintiff Park ○ and the Defendant’s trade relation (1) with Plaintiff Park ○ and the Defendant’s Park ○, who received the payment from Plaintiff Park ○.

(2) Around November 2007, the Defendant sold the Plaintiff’s 1 million won in 200,000 won, and received the payment from the Plaintiff’s Gab○. (A) around November 2007, the Defendant sold the Plaintiff’s Gabls (hereinafter “Vtillaum”) to the Plaintiff’s Gab○.

(3) Around September 2007, the Defendant sold to the Plaintiff Gab○○ in the amount of KRW 15 million, a sum of KRW 15 million, and received the payment from the Plaintiff Gab○○○. Around July 2009, the Defendant written the phrase “Virin” (hereinafter referred to as “Gacin”). Around July 2009, the Defendant stated the phrase “Gacin”).

B sold at KRW 200,000,000, among which the 9.5 million won was determined to substitute for the return of the activity in which the phrase “Emtile” was written. Accordingly, on July 1, 2009, Plaintiff Gamboo paid the remainder of KRW 12.5 million to the Defendant.

(4) Around August 2009, the Defendant sold in KRW 40,000,00 on the condition that he/she returned any of the above paragraphs (1) 1 (2) 1 (2) 2 (2) 3 200,000,000,000 won to Plaintiff Gab○○, respectively, on August 21, 2009.

(5) On August 5, 2010, the Defendant leased the Plaintiff’s YO with a total of KRW 10 million of the rent to the Plaintiff’s YO. On August 5, 2010, the Plaintiff’s YO paid KRW 5 million out of the rent to the Defendant.

[Grounds for Recognition] Facts without dispute, Gap evidence 2 through 6, 12, and 13 (including each number, if any) and the purport of the whole pleadings

2. The assertion and judgment

A. The summary of the plaintiffs' assertion (1) The defendant sold or leased Ban and Ban to the plaintiffs, by falsely notifying the plaintiffs or producers of the price or manufacturer thereof, and it paid the plaintiffs the purchase price or rent at the price notified by the defendant. (2) The plaintiff within ○○, and ○○○, and ○○, on the basis of fraud or mistake, cancel the purchase and sale contract and the lease contract with the defendant with respect to Ban and Bannnn and Bannnin, and seek the return of the purchase price, rent, and legal interest and delay damages paid to the defendant for unjust enrichment. In addition, according to the cancellation of the contract, the plaintiff Ansan○ requested the return of the Ban stated in attached Table 2, and the return of the Donin stated in attached Table 1, which was not received after the defendant lent to the defendant, also sought the return of the Donnin stated in attached Table 1, which was not received by the defendant.

(3) On August 2010, Plaintiff Park ○○ entered into with the Defendant on or around August 1, 2010, the Plaintiff’s claim for the cancellation of the lease agreement on grassball (a) L-C-C-C-L-L-L-L-L-L-L-L-L-L-L-L-L-L-L-L-L-L-L-L-L-L-L-L-L-L-L-L-L-L-L-L-L-L-L-L-L-L-L-L-L-L-L-L-L-L-L-L-L-L-L-L-L-L-L-L-L-L-L-L-L-L-L-L-L-L-L-O

B. The summary of the defendant's assertion (1) lack of a separate standard to determine a reasonable price in the case of franchising the defendant's assertion, so it is not possible to determine whether the agreed amount between the parties to the transaction is a reasonable price. The defendant'

Therefore, the Defendant did not deception the Plaintiffs, but did not err by mistake. (2) The purchase price or rent is determined by the contract party’s own decision, and there is a difference between the price determined by another malicious weather, and the Defendant could not be said to have deceiving the Plaintiffs.

(3) The Defendant was purchased from △△△△, etc., a malicious weather, from the above Bain and Baol. Compared with the Defendant’s purchase price, the purchase price or rent that the Plaintiffs paid by the Plaintiffs is appropriate. The Defendant, as to the quality or manufacturer of the above Barain and Barain, notified the Plaintiff of this △△△△△ or the guarantee of △△△△, was trusted, and thus, did not induce the Plaintiff. (4) The Defendant did not receive the Plaintiff’s total KRW 6 million from the rent of 1/4 business leased around March 2010.

(5) Even if the contract is revoked on the grounds of fraud or mistake, in the rent that the Defendant is to return to the Plaintiffs, the part of the profits accruing during the period for which the Plaintiffs leased and used fluoral or fluoral vitality should be deducted. In addition, even if a claim for damages is recognized based on a tort, the Plaintiffs also have been negligent in making efforts to confirm the objective price of fluoral and fluoral vitality, and thus, the negligence should be offset.

C. Determination

(1) Whether the defendant was accused or not

In full view of Gap evidence Nos. 2, 3, 7, 12, and 13 (including each number number), each of the appraisal results and the whole purport of the pleadings by the Korean appraiser's Association of Korea (hereinafter referred to as the Kim Hun-sik, the largest number of minerals, the classicals, the regulatives, the regulatives, the regulatives, the regulatives, and the regulatives of the arguments, the monthly rent is generally equivalent to 2% of the purchase and sale price, the defendant's appraisal results of the increase in the purchase and sale or lease to the plaintiffs, and the results of the appraisal of the increase in the lease and the actives that the plaintiffs individually requested against the malicious weather is similar to these.

In addition to the above facts and arguments, the following circumstances are acknowledged: (i) the circumstance that the defendant sells or rents the products to the plaintiffs, i.e., ① there is a significant difference between the purchase price for the proper purchase price, rent and appraisal as a result of the appraisal, ② the circumstance that the defendant seems to have expert knowledge about the quality, manufacturer, and price of the △△△△△△ in ○○○, an annual owner of the Austria, as the operator of the Austria, and it is reasonable to view that it would be difficult for the defendant to know the reasonable price because it is difficult to determine the quality of the products; (ii) the circumstance that the defendant purchased the products to purchase or rent the products to the plaintiffs, or that it would be difficult for the defendant to know that there is a considerable difference between the plaintiffs' reasonable price and the sales price of the products by △△△△△△ in light of the circumstances that the defendant purchased or rented the products to the plaintiffs, and (iii) the circumstances that the defendant could not know about the sale or lease price of the products to the plaintiffs or its properties purchased.

(2) The cancellation of the declaration of intention by fraud and the settlement of payment

As seen earlier, the Defendant, by deceiving the Plaintiffs about the value of the loan and loan, concluded a sales contract or lease contract on the loan and loan, etc. between the Plaintiffs and the Defendant, and thus, the above contract was revoked as the duplicate of the complaint of this case containing the purport that the Plaintiffs would cancel the contract on the ground of an expression of intent by fraud was served on the Defendant.

Therefore, following the cancellation of the above sales contract and the lease contract, the Defendant is a malicious beneficiary with respect to the money received from the Plaintiffs as the purchase price or rent, and the interest received pursuant to Article 748(2) of the Civil Act shall be refunded by adding legal interest or delay damages to the interest pursuant to Article 748(2) of the Civil Act. In addition, the amount set forth in the attached Table No. 2, which the Defendant received as a substitute for the payment of the purchase price, was returned to the Plaintiff ○○ upon the cancellation of the sales contract, and the Defendant is obligated to return

However, as seen earlier on March 2010, the Defendant leased KRW 6 million in total to ○○○ for six months of the rent (Article 141 of the Civil Act). However, even though it is recognized that the Plaintiff’s payment of KRW 6 million to the Defendant was without any legal ground, there is no evidence to acknowledge the fact that the Plaintiff’s payment was made (the Defendant consistently states to the effect that the Defendant did not receive the above KRW 6 million from an investigative agency). The Plaintiff’s claim on this part is without merit. (3) If the contract is revoked on the ground of the declaration of intention by the deduction fraud of the benefits used, the revocation act is deemed null and void from the beginning. Accordingly, the Plaintiffs are obliged to return to the Defendant the aforementioned amount of damages incurred by the use of the unjust enrichment, such as unjust enrichment.

However, in this case, data that can identify the period of the lease agreement, such as the above, was not submitted, and this appears to have been due to the reasons such as the Plaintiffs and the Defendant’s failure to clarify the period at the time of the above contract. Therefore, it is difficult to compute the accurate amount of profit from use.

Therefore, the above amount of unjust enrichment shall be determined by comprehensively taking into account the materials submitted during the pleadings of this case and the purport of the entire pleadings. In light of all the circumstances, including the appraisal results of the appraiser's association of Korea, the materials related to the above market price, including the plaintiffs and the defendant, the relationship between the plaintiffs and the defendant, and the reasons why the plaintiffs and the defendant concluded the lease contract and the progress after the conclusion of the contract, it is reasonable to view it as 10% of the aggregate of the rent stipulated in the lease contract concluded between the plaintiffs and the defendant. Ultimately, the defendant is obligated to return 90% of the remaining 10% of the rent received from the plaintiffs after deducting

(4) Claim for damages due to a tort

As seen earlier, the Defendant is liable to compensate for damages equivalent to the amount equivalent to the difference between the purchase price and the reasonable price, since the Defendant deceivings the Plaintiff Park ○○, thereby causing damages to the Plaintiff Park ○-○, which corresponds to the difference between the purchase price and the reasonable price.

Meanwhile, the above amount of damage is the difference between the reasonable amount of Gain or Gain's last possession by the plaintiff Park Jong-○ and the total amount of damages paid by the plaintiff Park Jong-○ to acquire Gain's above Ba, etc. Thus, the defendant is obligated to pay the plaintiff Park Jong-○ for damages of 20,350,000 won ( = 15,00,000 won + 12,500,000 won - 4,000 won) and 1.0,000 won for damages of Gain's ( = 75,00,000 won + 10,50,000 won + 10,000 won for damages of Gain's on the basis of 1.5 million won.

(5) Claim for comparative negligence

The assertion that a person who intentionally committed an illegal act by taking advantage of the victim's care is liable for the reduction of his/her responsibility on the ground of the victim's care is not permissible, barring any special circumstances (see Supreme Court Decision 2007Da36445, Jun. 12, 2008). Thus, the defendant's above assertion is without merit.

(6) Claim for return based on ownership

The Plaintiff-○○ purchased 10 million won from the Defendant around March 2009 at KRW 10,00,000 from the purchase of the loan set forth in [Attachment List No. 1], and thereafter lent the loan to the Defendant around October 2010 as seen earlier. Such lending relationship constitutes a loan for use without a return period. In this case, the borrower shall return the loan at the time when the use, profit-making is completed by the nature of the contract or object, but the lender may terminate the contract at any time when the period sufficient for the use, profit-making has elapsed (Article 613 of the Civil Act). Whether the period sufficient for the use, profit-making under the above provision has elapsed shall be determined by the determination of whether it is reasonable to recognize the right to termination from the standpoint of fairness, comprehensively taking into account the circumstances at the time of the loan for use contract, the period of use and utilization of the borrower, and the circumstances that the lender needs to return (see Supreme Court Decision 201Da724, Jul. 24, 2001).

See, 2369, et al.)

Considering that the Defendant is in an easy position in the purchase of a Dolin Private Teaching Institute as an operator of the Dolin Private Teaching Institute, the Defendant’s loan of the above Dolin from the Plaintiff ○ on October 2010 appears to have been made for temporary use, and that two years have already elapsed since the date of the above loan at the time of the closure of the argument in this case, and that the Plaintiff’s Dolin’s return of the above Dolin as the trust relationship with the Defendant was broken and need to terminate the legal dispute with the Defendant, it is reasonable to deem that the period sufficient to use and profit-making under Article 613 of the Civil Act has expired. Accordingly, the Defendant is obligated to return the Dol in the attached list 1 to the Plaintiff ○○○○.

D. Sub-committee theory (1) The Plaintiff-○

Therefore, the defendant shall pay 9,4160,00 won to the plaintiff Ansan ( = (3 million won + KRW 1,5 million + KRW 4,900,000 + KRW 6.5 million + KRW 900 + KRW 2,500 + KRW 8,000 + KRW 4,000)) and 5,40,00 won out of the above amount (2) and 5,000 won ( KRW 6,000 among the basic facts of January 2, 2009 x 90%), which was paid the above money, from October 22, 2009 to 3,1,350,000 won ( KRW 3-1,500,000 among the basic facts of January 1, 200 x 1,501,000 won).

BB- (5) and 4.9 million won x 90% of the above interest paid on April 13, 2010, 5850,000 won (Na (5) and 6.5 million won among the basic facts x 90%) from July 30, 2010, the day on which the above money was paid, with respect to 25 million won (Na (6) from September 8, 2010, which is the last day on which the above money was paid, 4.9 million won from the day after September 8, 2010, 2000 won (Na (6) from the day after the date on which the above money was paid, 200,000 won from the day on which the above money was paid, 3.5% of the above interest paid on the basis of 1.8% of the above list as to the existence and existence of each of the above damages for delay as stipulated in the Civil Act, and 1.5% of the above interest per annum from October 28, 20101.

(2) With respect to the above 00 million won = 200,000 won + 300,000 won + 400,000 won + 90,000 won + 200,000 won (1.0%) and 200,000 won (2.0,000,000 won) out of the above 50,000 won (2.0,000 won) calculated on April 21, 2010; 30,000 won (20,000 won) calculated on May 31, 2010; 300,000 won (20,000 won) calculated on the basis of the above 50,000 won (20,000 won) calculated on the basis of the above 100,000 won (300,000 won) calculated on the basis of the above 100,000 won (30,000 won).

Legal interest or delay damages calculated in proportion to each ratio are liable.

3. Conclusion

Therefore, each claim of the plaintiffs of this case is justified within the scope of the above recognition, and the remaining claims are without merit, and they are dismissed. It is so decided as per Disposition.