[Judgment of the court below]

Dam Chang Co., Ltd. (Attorney Cho Sung-sung, Counsel for defendant-appellee)

May 30, 2019

Suwon District Court Decision 2017Kadan124165 decided September 21, 2018

1. The judgment of the court of first instance is modified as follows.

A. At the same time, the Defendant shall pay to the Plaintiff 172,00,000 won with 5% interest per annum from January 1, 2018 to June 18, 2019, and 15% interest per annum from the next day to the date of full payment.

B. The plaintiff's remaining claims are dismissed.

2. 30% of the total costs of litigation shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

3. Paragraph 1(a) of this Article may be provisionally executed.

1. Purport of claim

The defendant shall pay to the plaintiff 20 million won with 15% interest per annum from the next day of service of a copy of the complaint of this case to the day of complete payment.

2. Purport of appeal

The part against the defendant in the judgment of the first instance shall be revoked, and the plaintiff's claim corresponding to the lost part shall be dismissed.

1. Facts of recognition;

A. On October 20, 201, the Plaintiff entered into an investment agreement on KRW 200 million (hereinafter referred to as “instant investment agreement”) with ENC Comprehensive architectural firms (hereinafter referred to as “ENC”), and the terms and conditions of the investment are as follows.

A person shall be appointed.

B. Until October 20, 201, the Plaintiff and Lee DoC deposited KRW 200 million in the account designated by Lee DoC’s account and determined that the instant investment agreement takes effect. On October 20, 201, the Plaintiff transferred KRW 200 million to the Nong Bank account (Account Number 1 omitted) in the name of the Nonparty Nonparty representative director of Lee DoC on October 20, 201 as agreed by the Plaintiff.

C. On November 30, 2012, the Defendant merged ENC, and the Plaintiff did not receive the investment money under the instant investment agreement from ENC or the Defendant.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2, and 4, response results against the order to submit financial transaction information to the Nonghyup Bank of the first instance court, the purport of the whole pleadings

2. Determination on the cause of the claim

A. According to the above facts of recognition, the defendant, who absorptions ENC, is obligated to pay to the plaintiff the investment amount of KRW 200 million under the investment agreement of this case and damages for delay thereof, unless there are special circumstances.

B. Defendant’s assertion and judgment

1) Determination as to the assertion of partial return of investment funds

The defendant asserts that E.I.D. remitted KRW 100 million to the plaintiff on November 30, 201, and thus, the defendant returned KRW 100 million, which is part of the investment amount under the investment agreement of this case.

According to the results of the reply to the order to submit financial transaction information to the No. 1 and No. 1 and the Nonghyup Bank of the first instance court, the non-party may recognize the fact that he remitted KRW 100 million to the Plaintiff’s corporate bank account (Account Number: (Account Number:: Account Number) on November 30, 201. However, in light of the entries in No. 5 and No. 6 and the testimony of the non-party to the first instance court witness, it is insufficient to recognize the above facts alone that the above 100 million won is the return of investment money pursuant to the investment agreement of this case, and there is no other evidence to acknowledge them. The defendant’s above assertion is without merit.

2) Determination on the assertion of stock transfer agreement or agreement between individuals

The Defendant asserts that the instant investment agreement is an investment agreement or a transfer agreement between the Plaintiff and the Nonparty and the Nonparty on 20,000 shares.

According to the statement No. 1 and the purport of the Non-Party’s testimony and pleading by the Non-Party of the first instance trial witness, the Plaintiff is only found to have paid KRW 200 million to Doz pursuant to the investment agreement of this case, and there is no evidence to deem that the Plaintiff and the Non-Party were an investment agreement between the Plaintiff and the Non-Party, as alleged by the Defendant, or that the agreement to transfer

3) Determination on the assertion of abuse of power of representation and the assertion of liability for damages under Article 401 of the Commercial Act

The defendant abused the power of representation by not using the investment funds received from the plaintiff in connection with the operation of E.Do Do Do c. The plaintiff was aware of the abuse of power of representation by the non-party. Thus, the investment agreement of this case is based on the abuse of power of representation and thus null and void against the defendant. However, it is insufficient to recognize the investment funds only by the descriptions of the evidence Nos. 2 through 6, and there is no other evidence to acknowledge it. The defendant's above assertion

In addition, in the case where the defendant is against the defendant in the lawsuit of this case, the plaintiff is liable for damages to the defendant pursuant to Article 401 of the Commercial Act, and the plaintiff is liable for damages against the defendant. However, the evidence submitted by the defendant alone is insufficient to recognize that the plaintiff is liable for damages against the defendant pursuant to Article 401 of the Commercial Act. Furthermore, even according to the defendant's assertion itself, the plaintiff is liable for damages after the lawsuit of this case. Thus, the claim that will occur in the future cannot be offset against the automatic claim.

4) Determination on the assertion of extinctive prescription

A) The assertion

According to the instant investment agreement, the Defendant asserts that, according to this case’s investment agreement, E.C. shall return to the Plaintiff the amount of KRW 280,000,000 per month from January 2012 to 2.8,000 per month, this constitutes an ancillary commercial activity for E.C.’s business operations, and thus, the five-year extinctive prescription period for commercial claims is applicable.

B) Relevant legal principles

A claim arising from an act falling under a commercial activity is also a commercial claim for which the five-year extinctive prescription under Article 64 of the Commercial Act applies to only one of the parties, and such commercial activity includes assistive commercial activities conducted by a merchant for business purposes (see Supreme Court Decision 2006Da1381, Apr. 27, 2006). A borrowing of business funds cannot be deemed an act of preparing a commercial activity which is an object of business, in view of the nature of the act itself. However, in a case where a subjective intent of the actor is an act of preparing for business and the other party is aware that the act is an act of preparing for business purposes by explaining the actor, etc., the provisions of the Commercial Act concerning commercial activities apply (see, e.g., Supreme Court Decision 2011Da104246, Apr. 13, 2012)

C) Determination

According to the above evidence, this DoC was engaged in construction business for the purpose of general construction business (public construction business), landscaping construction business at the time of the conclusion of the instant investment agreement, and this DoC received the above investment amount from the Plaintiff for the "business management of proprietor of engineering activities, environment, and traffic impact assessment". Since it is recognized that the Plaintiff was aware of all such circumstances at the time of the conclusion of the instant investment agreement, it is reasonable to view that the Defendant’s act of receiving the investment amount from the Plaintiff is a preparatory act for business and that the Plaintiff is aware of it, it is also reasonable to view that the provision of the Commercial Act concerning the return claim

However, as seen earlier, the Plaintiff’s claim for the return of the instant investment amount was created by KRW 2.8 million each month from January 2012 to November 17, 2017. As such, it is apparent that the Plaintiff’s lawsuit of this case was filed on November 17, 2017. As such, the Plaintiff’s claim for the return of the instant investment amount remainder of KRW 28,000,000 (= KRW 28,800,000) out of the Plaintiff’s claim for the return of the investment amount from January 1, 2012 to October 2012 (i.e., KRW 172,00,000 (= KRW 200,000 - KRW 28,000,000).

Therefore, the defendant's argument is justified.

5) Determination on simultaneous performance defenses

In accordance with the investment agreement of this case, E.C. delivered 20,00 shares of E.C. 20,00 shares to the Plaintiff according to the investment agreement of this case, there is no dispute between the parties, and according to the overall purport of evidence Nos. 4, 7, and 8 of E.C. 7, and the testimony and arguments of the non-party to the first instance trial witness, E.C. 20,000 shares of E.C. owned by E. 20,000 shares in the attached list was converted to 12,560 shares of the Defendant as indicated in the attached list, and the Plaintiff was only owned by E.C. to secure the recovery of the investment amount, and thus, the Plaintiff is deemed to have a simultaneous performance relationship between the Defendant’s obligation to return the investment amount of this case and the Plaintiff’s obligation to return the shares. Therefore, the Defendant’s aforementioned defense has merit.

C. Sub-committee

Therefore, at the same time, the Defendant is obligated to pay 172,00,000 won to the Plaintiff with 172,00,000 won as stated in the separate sheet from January 1, 2018, which is the day following the completion date of the return of the investment deposit stipulated in the instant investment agreement, to June 18, 2019, 5% per annum as stipulated in the Civil Act until June 18, 2019, and to pay 15% interest rate per annum as stipulated in the main text of Article 3(1) of the Act on Special Cases Concerning Expedition, etc. of Legal Proceedings from the next day to the day of full payment (Presidential Decree No. 29768, May 21, 2019); Article 3(1) of the Addenda of the former Act on Special Cases Concerning Expedition, etc. of Legal Proceedings (amended by Presidential Decree No. 29768, May 21, 2019).

The Plaintiff sought damages for delay from the date following the delivery date of the copy of the complaint of this case, which is prior to the completion date of the return of the investment deposit stipulated in the investment agreement of this case. However, in this case where there is no evidence as to E.C. or the Defendant renounced the benefit of time or there is a special agreement for the loss of the benefit of time under Article 388 of the Civil Act or between the parties, the benefit of time is presumed to be for the benefit of the obligor (Article 153 of the Civil Act). Thus, the Plaintiff’

3. Conclusion

Thus, the plaintiff's claim of this case shall be accepted within the scope of the above recognition, and the remainder of the claim shall be dismissed as it is without merit. Since the judgment of the court of first instance is unfair in conclusion, it is so decided as per Disposition by changing the judgment of the court of first instance.

[Attachment]

Judges Choi Chang-il (Presiding Judge) and Park Jong-young

(1) Plaintiff’s preparatory brief dated August 29, 2018