2014Da225441 Return, etc. of investments

A

An incorporated association G (former: B)

Busan District Court Decision 2014Na40029 Decided September 18, 2014

January 15, 2015

The judgment of the court below is reversed, and the case is remanded to Busan District Court Panel Division.

The grounds of appeal are examined.

1. The lower court determined as follows.

A. The Plaintiff demanded the return of the investment amount that was already paid to the Defendant without paying KRW 50 million out of the investment amount under the instant contract, and accordingly, the Plaintiff and the Defendant agreed that the Plaintiff would no longer perform the instant contract until the Defendant returned the amount of KRW 20 million to the Plaintiff. Therefore, the instant contract was rescinded implicitly. Therefore, barring any special circumstance, the Defendant is liable to return the down payment that was paid by the Plaintiff to the Plaintiff as the restitution following the rescission of the instant contract to the original state.

B. However, in light of the following: (a) the Defendant returned KRW 20 million on October 10, 2012 upon the Plaintiff’s request for return; (b) the most significant cause for the rescission of the contract in this case was the Plaintiff’s request for the nonperformance of contract and the return of investment money; (c) the Defendant appears to have been obstructed in proceeding with the exercise of this case on the wind that the Plaintiff was unable to pay the investment money at once under the contract in this case; and (d) the Plaintiff’s assertion that the Defendant accepted the Plaintiff’s demand by the Plaintiff who breached the contractual obligation and agreed to return the entire investment money already paid is unreasonable; and (e) there was an settlement agreement to return only KRW 20 million out of the investment money already paid between the Plaintiff and the Defendant, and to waive the remainder of KRW 30 million. The Defendant did not have any obligation to return the remainder to the Defendant by returning the investment amount to the Plaintiff under the above settlement agreement.

2. However, in the judgment of the court below, it is difficult to accept for the following reasons that there was an agreement on the settlement of accounts between the plaintiff and the defendant to return only KRW 20 million out of the investment amount already paid between the plaintiff and the defendant, and to waive the remaining KRW 30 million.

A. The waiver of a claim does not necessarily require an explicit declaration of intent, and it should be recognized in cases where it can be deemed the waiver of a claim by means of the obligee’s act or the interpretation of the obligee’s expression of intent. However, for such recognition, the application of the waiver of a claim ought to be determined by strict interpretation of the obligee’s act or the expression of intent in accordance with the content of the pertinent legal relationship (see, e.g., Supreme Court Decision 86Meu1907, Mar. 24, 1987). This legal doctrine likewise applies to cases where it is recognized that there was an agreement on the waiver of a claim by the obligee

B. In light of the record, the Plaintiff requested the Defendant to return KRW 50 million, which was already paid to the Plaintiff, and did not have any evidence to prove that the Plaintiff had expressed his/her intent to waive the remainder of KRW 30 million. In addition, whether the Plaintiff breached its contractual obligation under the instant contract or not shall be set aside, and the record reveals that the Plaintiff continued to demand the return of KRW 20 million after receiving a return from the Defendant on October 10, 2012, and even after receiving a return of KRW 30 million, it cannot be deemed that the Plaintiff renounced its claim for the return of KRW 30 million when the Plaintiff implicitly agreed on the rescission of the instant contract.

1) According to the statement in Gap evidence No. 7, it appears that the plaintiff sought confirmation as to whether the plaintiff would return 30 million won to Eul later while making a telephone conversation with defendant E employee E on November 16, 2012.

2) According to the statement No. 12-9 of the evidence No. 12-9, the defendant's representative was present as a witness of the Busan District Court 2013 High Court 5235 case, and the defendant demanded the return of KRW 50 million that the plaintiff paid to the defendant, and the defendant returned KRW 20 million through internal meetings, and thereafter, the plaintiff demanded the return of the remaining KRW 30 million, and the plaintiff demanded the return of the remaining KRW 30 million to return the internal meeting to the plaintiff, which means that the plaintiff will return the internal meeting.

3) On October 10, 2012, the Plaintiff was returned KRW 20 million from the Defendant and did not pay KRW 30 million. On November 21, 2012, the Plaintiff filed the instant lawsuit immediately on November 21, 2012. If the factual basis is as above, in light of the legal principles as seen earlier, it cannot be deemed that there was an agreement on settlement of accounts with the purport to waive the amount of KRW 30 million, which was not returned to the Plaintiff and the Defendant solely based on the circumstances indicated by the lower court. Therefore, the lower court erred by misapprehending the legal doctrine on the recognition of the waiver of a claim or the agreement on the waiver of a claim, exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, thereby adversely affecting the conclusion of the judgment.

The ground of appeal pointing this out is with merit.

3. Therefore, without examining the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench

Justices Shin Young-young

Justices Lee Sang-hoon

Justices Kim Chang-tae, Counsel for the defendant

Justices Cho Jong-hee