B. B.C. (Law Firm Sejong et al., Counsel for the plaintiff-appellant)

Defendant 1 and six others (Law Firm Jeong-jin et al., Counsel for the defendant-appellant)

March 21, 2013

Suwon District Court Decision 201Gahap1434 decided April 20, 2012

1. The part of the judgment of the court of first instance against the plaintiff, which orders payment below, shall be revoked.

(a) 5% per annum from August 6, 2011 to April 4, 2013 with respect to the Plaintiff’s KRW 1,000,000,000, and 20% per annum from the next day to the day of complete payment;

(1) Defendants 1 and 2 (Co-defendant 2) shall be paid jointly and severally with co-defendant 2 of the first instance trial;

(2) Defendant 7 (Large-board Co-Defendant 7) shall be paid jointly with Co-Defendant 2 of the first instance trial, Defendant 2 (Large-board Co-Defendant 2) and Defendant 1;

(3) Defendant 6 (Co-Defendant 6) shall pay jointly and severally with Co-Defendant 2 of the first instance trial, Defendant 2 (Co-Defendant 2 of the first instance trial: the first instance trial co-defendant 2), and Defendant 1;

(4) Defendant 3 (Counter-board: Defendant 2) and Defendant 4 (Defendant 3) are jointly and severally paid with Co-Defendant 2 of the first instance trial.

B. Defendant 5 (Counter-board: Defendant 4) jointly and severally with Co-Defendant 2 of the first instance trial and Defendant 4 (Counter-board: Defendant 3) shall pay 400,000,000 of the above paragraph (a) and 5% per annum from August 6, 2011 to April 4, 2013, and 20% per annum from the next day to the date of full payment.

2. The plaintiff's remaining appeals against the defendants are all dismissed.

3. The plaintiff bears five minutes of the total costs of the lawsuit, and the remainder shall be borne by the defendants.

4.Paragraphs 1-a (b) and (b) may be provisionally executed.

1. Purport of claim

A. Main: 20% interest per annum on the Plaintiff’s KRW 1,00,000 and its corresponding amount from July 20, 201 to the date of complete payment following the delivery of a copy of the application for modification of the claim and the cause of the claim as of July 20, 201; 20% interest per annum; Defendant 2 (Co-Defendant 2 in the judgment of the court of first instance; Defendant 1 and co-defendant 2 in the judgment of the court of first instance; Defendant 7 (Co-Defendant 7 in the judgment of the court of first instance: Co-Defendant 2 in the judgment of the court of first instance); Defendant 2 (Co-Defendant 2 in the judgment of the court of first instance: Co-Defendant 2 in the judgment of the court of first instance); Defendant 2 (Co-Defendant 2 in the judgment of the court of first instance: Defendant 3 (Co-Defendant 2 in the judgment of the court of first instance); Defendant 5 (Co-Defendant 4 in the judgment of the court of first instance); Defendant 1 and Defendant 3 (Co-Defendant 4).

B. Preliminary: The Plaintiff; Defendant 3 (Co-Defendant 2) from December 4, 2009; Defendant 5 (Co-Defendant 4) from December 3, 2009; Defendant 6 (Co-Defendant 6) from December 4, 2009; from December 4, 2009; from December 4, 2009; from December 4, 2009; from December 4, 2009; from December 4, 2009; from December 7 (Co-Defendant 7) to December 40, 200,000; from December 2, 2009; from March 13, 2013; from the date following each of the instant preliminary claims for unjust enrichment, Defendant 40,000,000 won; from March 13, 2013; from the date of the instant preliminary claims for unjust enrichment, Defendant 5 (Co-Defendant 7) paid the amount to the Plaintiff by the date of complete payment.

2. Purport of appeal

The judgment of the first instance is revoked. The judgment such as the primary purport of the claim is the same.

1. Basic facts

The plaintiff is a company registered on KOSDAQ established for the purpose of miscellaneous manufacturing business and foreign commercial domestic agency business, and the co-defendant 2 of the first instance court served as the plaintiff's internal director from May 22, 2009 to February 5, 2010 and served as the plaintiff's representative director from July 20, 2009 to January 13, 2010.

Around June 2009, Co-Defendant 2 of the first instance court kept 13.5 billion won for the Plaintiff. Around that time, Co-Defendant 2 offered to acquire the Plaintiff’s shares using the above subscription price for the Plaintiff’s management right dispute with Nonparty 3, etc., who was the largest shareholder of the Plaintiff, to acquire the Plaintiff’s shares in the next name. To this end, he voluntarily withdrawn KRW 5.72 million from October 30, 2009 to November 12, 2009 and embezzled the Plaintiff’s corporate bank account for six times. In addition, Co-Defendant 2 of the first instance court had the possibility of being aware of the above embezzlement, for the purpose of raising awareness of the occurrence of the above embezzlement, and made out KRW 3.3 billion from the Plaintiff’s corporate bank account to November 30, 2009 to his overseas transfer money.

The co-defendant 2 of the first instance trial asked non-party 1 who made an offer of money to use the amount of KRW 330 million, which was embezzled from overseas capital, as it is, if so, likely to cause the source to be revealed. Defendant 4 (Counter-party 3) who is a transfer of interest at high school and a tax accountant after the transfer of the money deposited to Defendant 3 (Counter-party 2: Defendant 2) and Defendant 5 (party 4: Defendant 4), who is a joint witness of the embezzlement fund deposited to deliver the money deposited to Defendant 2 (Counter-party 2: Co-Defendant 2). Accordingly, the non-party 1 asked the money laundering of the above embezzlement fund again to Defendant 1, and Defendant 2 (Counter-party 2 in the first instance trial: the co-defendant 7 in the first instance trial), and Defendant 1 received the money laundering of the money deposited through Defendant 7 (In the second instance trial: Defendant 7), Defendant 6 (Co-Defendant 6 in the second instance court’s small amount of money deposited as follows.

① Upon Defendant 7 (Co-Defendant 7)’s request for the said money laundering from Defendant 1, and on December 1, 2009, Defendant 1, 2000,000 won (in the case of the KRW 30 million check, KRW 420 million check, KRW 1,000,000,000, KRW 1,000,000,000 won (hereinafter “the act of concealing Defendant 1”).

② Defendant 1 received KRW 1 billion (100 million check 100 million) out of the embezzlement funds from Nonparty 1, and on December 2, 2009, deposited KRW 50 million in the national bank account in the name of Nonparty 2 at the △△△△△△ branch of the National Bank located in Songpa-gu Seoul, Songpa-gu, Seoul, with Nonparty 1 deposit KRW 50 million among them in the national bank account in the name of Nonparty 2, and re-issued the remaining KRW 950 million check with KRW 1 million (hereinafter “instant concealment 2”).

③ Defendant 1 requested Defendant 6 (Co-Defendant 6 of the judgment of the court below for the money laundering of KRW 1.1 billion (10 million, KRW 10 million, KRW 20 million, KRW 5) out of the above embezzlement funds to Defendant 1 via Nonparty 4, and Defendant 6 (Co-Defendant 6 of the judgment of the court below) exchanged the total amount of KRW 1.1 billion in cash at the company bank established in the village of Yongsan-gu Seoul, Yongsan-gu, Seoul (hereinafter “the concealment of this case 3”) from December 2, 2009 to December 3, 2009 (hereinafter “the concealment of this case”).

In the process of money laundering, Defendant 1, 2.5 million won (including the above 50 million won deposited in a non-party 2 account), Defendant 2 (Co-Defendant 2), Defendant 4 (Defendant 3), Defendant 7 (Co-Defendant 7), and Defendant 6 (Co-Defendant 6: Defendant 3: Defendant 4:00,000 won, and Defendant 4:0,000 won, were delivered to Defendant 2 (Defendant 3:00,000 won, and Defendant 4:3:00,000 won, and Defendant 4:3:00,000 won, and Defendant 2:00,000,000 won, were embezzled on December 1, 2009 to Defendant 2 (Defendant 4:5:0,000 won, and Defendant 2:3:00,000 won, which was embezzled on December 1, 209).

As a result of the above embezzlement, Co-Defendant 2 of the first instance court was sentenced to imprisonment for six years due to a violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) and the Act on the Regulation and Punishment of Criminal Proceeds Concealment (hereinafter “Criminal Proceeds Regulation Act”), Article 3(1)3 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (hereinafter “The Punishment of Criminal Proceeds Regulation”), and Defendant 1 was sentenced to a suspended sentence for two years with prison labor for a violation of Article 3(1)3 and 4 of the Punishment of Criminal Proceeds Regulation Act, Article 3(2) of the Punishment of Criminal Proceeds Regulation Act, Article 3(1)3 and Article 4 of the Punishment of Criminal Proceeds Regulation Act, and Article 3(2) of the Punishment of Criminal Proceeds Regulation Act, Article 3(1)3 and Article 4 of the Punishment of Criminal Proceeds Regulation Act, and Article 3(2) of the Punishment of Criminal Proceeds Regulation of the Daejeon District Court and Article 3(1)4 of the Punishment of Criminal Proceeds Regulation of the Second Instance District Court (The Punishment of Punishment Act).

[Reasons for Recognition] Unsatisfy, Gap 1 through 5 (including virtual numbers), the purport of the whole pleadings

2. The plaintiff's ground for claim

(a) The primary cause of the claim;

The Defendants participated in the embezzlement by Co-Defendant 2 of the first instance trial by concealing and receiving the embezzlement funds of Co-Defendant 2 of the first instance trial. Even if the Defendants were not involved in the embezzlement by Co-Defendant 2 of the first instance trial, the Defendants participated in the tort of concealing funds embezzled by Co-Defendant 2 of the first instance trial.

Therefore, the Defendants, based on joint tort with co-defendant 2 of the first instance trial, are obligated to pay 1 billion won and damages for delay to the Plaintiff jointly and severally, as part of the damages, as indicated in the primary purport of the claim.

(b) Preliminary cause of claim.

In addition, in the course of money laundering, etc. as above, KRW 1.948 billion received by Defendant 3 (party 2), KRW 400 million received by Defendant 5 (party 4), and KRW 68 million received by Defendant 6 (party co-defendant 6) and KRW 40 million received by Defendant 7 (party co-defendant 7) in the course of money laundering, etc., the amount of KRW 40 million received by the above Defendants since the above Defendants received the Plaintiff’s funds embezzled by Co-Defendant 2 of the first instance trial without any legal ground, it constitutes unjust enrichment.

Therefore, based on the return of unjust enrichment, Defendant 3 (Co-defendant 2) is liable to pay to the Plaintiff, part of which is KRW 1 billion, Defendant 5 (Co-defendant 4) to Defendant 6 (Co-defendant 6) to KRW 68 billion, Defendant 7 (Co-defendant 7) to the Plaintiff, and damages for delay.

3. Incorporation of joint tort;

In the establishment of a joint tort under Article 760(1) of the Civil Act, it is sufficient that there is no common or joint perception among the joint tortfeasor, and that there is an objective common nature related to each act of the joint tortfeasor, and if damages were incurred by the relevant joint act, the liability for damages can not be exempted (see, e.g., Supreme Court Decision 98Da9205, Sept. 25, 1998). However, in the establishment of a joint tort, it should be deemed that the act committed by each tortfeasor on the part of the joint tortfeasor on the part of the joint tortfeasor on the part of the joint tortfeasor on the part of the joint tortfeasor on the part of the joint tortfeasor on the part of the joint tortfeasor on the part of the joint tort on the part of the tortfeasor on the part of the joint tortfeasor on the part of the joint tort on the part of the tortfeasor on the part of the joint tort on the part of the joint tort on the part of the tortfeasor on the part of the joint tort.

Since the embezzlement by Co-Defendant 2 in the first instance trial may be deemed to have been established by withdrawing funds from the Plaintiff’s corporate bank account, it is difficult to view that the Defendants directly participated in the embezzlement by Co-Defendant 2 in the first instance trial. However, since Co-Defendant 2 in the first instance trial embezzled funds from foreign capital to foreign capital, the above KRW 330 million was withdrawn from the check with the high amount of KRW 100 million to KRW 20 million, which was difficult to use in that state, there were special circumstances where the Defendants could not use the checks in that state. The Defendants sent, delivered, kept, and stored the large amount of checks, so that Co-Defendant 2 in the first instance trial could easily use them. If Co-Defendant 2 in the second instance trial did not embezzling or cashizing the above funds, it would be difficult for Co-Defendant 2 in the second instance court to ultimately withdraw the amount of the checks that were withdrawn from the above corporate bank account and thus, it would be difficult for Co-Defendant 3 in the second instance trial to recover the amount of the checks.

Meanwhile, the Criminal Proceeds Regulation Act was enacted in order to fundamentally eliminate the economic factors that encourage such crimes by regulating the act of concealing criminal proceeds from specific crimes such as embezzlement. As seen earlier, Co-Defendant 2 of the first instance court was punished for violation of Article 3(1)3 of the Criminal Proceeds Regulation Act with respect to the act of concealing the above embezzlement funds. The Defendants were punished for violation of Article 3(1)3 through 4 of the Criminal Proceeds Regulation Act with respect to the act of taking part in the concealment of the above embezzlement funds by Co-Defendant 2 of the first instance court. In other words, Co-Defendant 2 of the first instance court and the Defendants were “an act of concealing the embezzlement funds of Co-Defendant 2 of the first instance court for the purpose of pretending them as property lawfully acquired, or giving and receiving them knowing such circumstances,” separate from the embezzlement act by Co-Defendant 2 of the first instance court, which constitutes separate legal interests that make it difficult to recover the embezzlement funds difficult.

Therefore, in full view of the following facts: (a) the embezzlement fund, which is a large check, is commercialized or small, causing substantial difficulties in recovering the Plaintiff’s embezzlement fund by facilitating its use; and (b) as a result, the co-defendant 2 of the first instance court and the Defendants were punished for violating the Act on the Regulation of Criminal Proceeds, separate from the embezzlement by Co-defendant 2 of the first instance court; (c) the Defendants and Co-defendant 2 of the first instance court, who deposited the embezzlement fund by washing and delivering it to the Co-Defendant 2 of the first instance court; and (d) the acts of the Defendants and Co-Defendant 2 of the first instance court constitute a joint tort under Article 760(1) through (3)(5) of the Civil Act, which provides that the act of the Defendants and the Co-Defendant 2 of the first instance court constitutes “a concealment of embezzlement funds”

Therefore, with respect to the concealment of the Defendants’ participation among the concealments Nos. 1, 2, and 3 of this case, the Defendants shall be held liable for joint tort against the Plaintiff along with Defendant 2 of the first instance trial and the Defendants who participated in the concealments.

4. Scope of damages.

In a concrete examination of the Defendants’ participation, in the case of Co-Defendant 2 of the first instance trial, Defendant 1, and Defendant 2 (Co-Defendant 2 of the first instance trial: Defendant 1, Defendant 2, and Defendant 2 (Co-Defendant 2 of the first instance trial): in the case of Defendant 7 (Co-Defendant 7 of the first instance trial), the act of concealing the first instance case; and in the case of Defendant 6 (Co-Defendant 6 of the first instance trial: Defendant 1, Defendant 2 (Co-Defendant 2 of the first instance trial: Co-Defendant 2 of the first instance trial), jointly and severally with Co-Defendant 2 of the first instance trial about KRW 3.12,00,00 won in total, and jointly and severally with Defendant 2, Defendant 1, Defendant 12, and Defendant 2 (Co-Defendant 7 of the first instance trial: KRW 200,000,000,000,000).

In addition, according to the request of Co-Defendant 2 of the first instance trial, Defendant 4 (Defendant 3) delivered KRW 1.948 million to Defendant 3 (Defendant 2), KRW 400 million to Defendant 5 (Defendant 4): Defendant 400 million to Defendant 4; Defendant 3 (Party 3: Defendant 2); Defendant 3 (Party 2: Defendant 4: Defendant 400 million) was punished only as receiving criminal proceeds under Article 4 of the Criminal Proceeds Regulation Act; Defendant 5 (Party 4: Defendant 4) was jointly and severally liable with Defendant 2, Defendant 400,000,000 won among the total damages of Defendant 2,300,000,000 won; Defendant 40,000 won was jointly and severally liable with Defendant 4:30,000,000 won among the total damages of Defendant 2, and Defendant 4:30,000,000 won was jointly and severally liable with Defendant 4 (Party 3: Defendant 3).

Meanwhile, in the criminal trial process, the offender raised the victim as deposit and the victim paid the amount of damages under the civil law (see, e.g., Supreme Court Decision 98Da43922, Jan. 15, 199), and considering the overall purport of pleadings in evidence Nos. 1, 2, 2, and 500,000 won which the defendant 1 received as fee in each of the above criminal trial process, the defendant 2 deposited the amount of KRW 500,000,000,000,000,000 won, and KRW 2,50,000,000,000 won, and KRW 2,50,000,000,000 won and KRW 2,50,000,000,000,000 won and KRW 2,50,000,000,000 won and KRW 3,016,00,000.

Therefore, as the plaintiff seeks, 1,00,000 won which the plaintiff seeks as part of his claim and the plaintiff's 1,00,000,000 won, the above 20% interest rate of 5% interest per annum under the Civil Act from August 6, 2011 to April 4, 201, which is clear that it is reasonable to dispute about the existence and scope of the defendants' obligation to perform, shall be jointly and severally paid with the co-defendant 2, 200, 30:0 interest rate of 20% interest per annum under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings from the next day to the date of full payment, 3:0% interest per annum from the next day to the above 4: The co-defendant 4, 200, 200, 3:00 interest rate per annum 2, 20% interest rate per annum : Defendant Co-defendant 1, 200 (Co-defendant 7: Defendant 2, 2, 4: Defendant 2, and 6:

In addition, unlike the main claim, the plaintiff's conjunctive claim is not jointly and severally seeking 1 billion won and damages for delay, but individually claiming the amount of each conjunctive claim (total amount of KRW 1.58 billion and damages for delay) against the defendant 3 (party 2), defendant 5 (party 4, defendant 6 (party co-defendant 6), and defendant 7 (party co-defendant 7). However, as the defendant 3 (party 2), defendant 5 (party 4: party co-defendant 4), defendant 6 (party co-defendant 6), and defendant 7 (party co-defendant 7 of the original trial: party co-defendant 7) exceeds the individual amount of each conjunctive claim, the plaintiff's conjunctive claim is not judged separately.

5. Conclusion

Therefore, the plaintiff's primary claim shall be accepted within the scope of the above recognition and the remaining claims shall be dismissed. Since the judgment of the court of first instance is unfair with different conclusions, the part against the plaintiff falling under the above cited part of the judgment of first instance shall be revoked, order the defendants to pay the above cited amount to the plaintiff, and the remaining appeal against the defendants against the plaintiff shall be dismissed in its entirety. It is so decided as per Disposition.

Judges Yoon Jin (Presiding Judge)

1) The Plaintiff’s purport of the claim is as follows: “Codefendant 2 of the first instance trial, Defendant 2 (Codefendant 2 of the first instance trial: Defendant 1); each of Defendant 1,00,000,000, and Defendant 7 (Codefendant 7 of the first instance trial): Defendant 2, Defendant 2 (Codefendant 2 of the first instance trial), Defendant 1, jointly and severally with Defendant 1, and KRW 1,000,000,000, and Defendant 6 (Codefendant 6 of the first instance trial: Codefendant 2 of the first instance trial), Defendant 2 (Codefendant 2 of the second instance trial: 1,00,000,000,000, and Defendant 1, jointly and severally with Defendant 1, and jointly with Defendant 1, Defendant 3 (Codefendant 2 of the second instance trial), Defendant 5 (Codefendant 4 of the first instance trial), and Defendant 4 (Codefendant 30,000,00 won and damages for delay between Defendant 1 and Defendant 10.”

2) A person who falls under any of the following subparagraphs shall be punished by imprisonment for not more than five years or by a fine not exceeding 30 million won:

주3) ◆ 금융결제원의 어음교환업무규약 제15조(어음의 부도) ① 교환제시되거나 창구제시된 어음 중 부도어음이 있을 경우 참가은행은 세칙에서 정하는 바에 따라 이를 반환하여야 한다. ② 전항에 의한 부도처리시 적용할 사유는 세칙에서 정하는 바에 따른다. ◆ 어음교환업무규약 시행세칙 제67조(부도사유) ① 수표, 약속어음 또는 환어음을 부도반환할 때 적용할 부도사유는 다음과 같이 한정한다. 5. 사고신고서접수(분실, 도난, 피사취, 계약불이행)

4) Article 1 (Purpose) of the Act on Regulation and Punishment of Criminal Proceeds Concealment aims to contribute to the maintenance of sound social order by regulating the act of concealing criminal proceeds for the purpose of pretending the acquisition, etc. of criminal proceeds related to specific crimes, promoting specific crimes, or pretending to the assets legitimately acquired, and by prescribing special cases concerning confiscation and collection of criminal proceeds related to specific crimes, thereby fundamentally eliminating economic factors that encourage specific crimes.

5) Article 760 (Liability of Joint Contributors) (1) of the Civil Act (Liability of Joint Contributors) If several persons inflict damages on another person by a joint tort, they are jointly and severally liable to compensate for such damages.

Note 6) In light of the contents, etc. of the purport of the claim jointly and severally sought by the Defendants, the starting date of the claim’s delay damages shall be construed as “the day after the final delivery” against