Future D&C Co., Ltd. (Law Firm Shin, Attorneys Kim Man-tae, Counsel for defendant-appellant)

Defendant (Attorney Na-soo, Counsel for defendant-appellant)

May 26, 2016

Seoul Central District Court Decision 2014Gahap562596 Decided June 12, 2015

1. The part against the defendant in the judgment of the first instance is revoked, and all of the plaintiff's claims against the defendant are dismissed.

2. Of the total litigation costs, the part arising between the plaintiff and the defendant shall be borne by the plaintiff.

1. Purport of claim

It is confirmed that the Plaintiff is a creditor of the claim stated in the separate sheet (hereinafter “claim of this case”). The Defendant shall pay to the Plaintiff the amount of KRW 93,00,000 and 20% interest per annum from the day following the delivery of a copy of the complaint of this case to the day of full payment.

2. Purport of appeal

The same shall apply to the order.

1. Basic facts

The reasoning for this part of this Court is that it is identical to the statement "1. Facts recognized" in the reasoning of the judgment of the court of first instance, and thus, this part is cited in accordance with Article 420 of the Civil Procedure Act

2. Determination on the defense prior to the merits

A. The plaintiff's assertion

The Plaintiff sought confirmation against the Defendant that the Plaintiff was the obligee of the instant claim, and the Defendant asserted that the reimbursement amount received based on the instant assignment order constituted unjust enrichment, and the first instance court accepted all the said claim. Accordingly, the Defendant stated in the petition of appeal submitted on June 17, 2015, that “the part against the Defendant among the judgment of the first instance (Article 2 of the original judgment) against the Defendant is revoked, and the Plaintiff’s claim corresponding to the revoked portion is dismissed,” but the purport of appeal was corrected in the petition of appeal submitted on March 18, 2016, stating that “the correction of the purport of appeal submitted on March 18, 2016, the part against the Defendant among the judgment of the first instance, shall be revoked, and the Plaintiff’s claim corresponding to the revoked portion shall be dismissed.” As seen above, at the time of filing the appeal, the Defendant appealed only the part of the claim for restitution of unjust enrichment without filing an appeal regarding the claim for restitution of unjust enrichment, but correcting the purport of appeal as to the above part of the claim during the appellate trial proceedings.

B. Determination

Where an appeal is filed only against a part of the judgment of the court of first instance which accepted several claims by the defendant, the remaining parts which have not been appealed shall be prevented, and they shall be transferred to the appellate court. If the defendant expands the purport of appeal until the closing of argument in the appellate court, the remaining parts shall also be included in the subject of adjudication in the appellate court (see Supreme Court Decision 2009Da35842, Jul. 28, 201). The defendant's request for correction of the purport of appeal as of March 18, 2016 shall be extended to the purport of expanding the purport of appeal. Therefore,

3. Judgment on the merits

A. The plaintiff's assertion

1) The genuine right holder of the instant bill is the Plaintiff, and Nonparty 1 (Co-Defendant 1) embezzled the instant bill and reported himself as a rehabilitation creditor. As such, the legitimate creditor of the instant rehabilitation claim is the Plaintiff. Ultimately, Nonparty 1 (Co-Defendant 1) entered in the table of rehabilitation creditors as a creditor is null and void, and the instant assignment order is also null and void because it is against a claim for which no assignment order exists. Accordingly, the Plaintiff is the legitimate creditor of the instant claim.

2) Meanwhile, Nonparty 2 paid the instant reimbursement to the Defendant in accordance with the instant assignment order, which is valid as repayment to quasi-Possessors of the claim. As a result, the Defendant gains a benefit from receiving the said reimbursement, while the Plaintiff, who is a legitimate right holder, suffered considerable loss. Accordingly, the Defendant is liable to pay the instant reimbursement and damages for delay as restitution of unjust enrichment to the Plaintiff.

B. Determination

1) The Plaintiff issued the Promissory Notes, and Nonparty 1 (Co-Defendant 1) embezzled the Promissory Notes and reported the rehabilitation claim to the Plaintiff as its holder. As seen earlier.

2) However, the right holder who lost or stolen a promissory note may lose its validity as securities of the Promissory Notes, and exercise his/her right to the Promissory Notes without holding a promissory note. There is no evidence to acknowledge that the Plaintiff possessed the Promissory Notes or received a judgment of nullification as to the Promissory Notes. If there is no evidence to support that Nonparty 1 (Co-Defendant 1) embezzled the Promissory Notes, solely on the ground that Nonparty 1 (Co-Defendant 1) embezzled the Promissory Notes, the Plaintiff, who did not hold the Promissory Notes and did not receive a judgment of nullification, cannot assert that he/she is the right holder of the Promissory Notes.

3) Therefore, the Plaintiff’s assertion based on the premise that the Plaintiff is the right holder of the Promissory Notes is without merit.

4. Conclusion

Therefore, the plaintiff's claim against the defendant shall be dismissed in entirety as it is without merit. Since the part against the defendant among the judgment of the court of first instance is unfair in conclusion with different conclusions, the defendant's appeal is accepted, and the part against the defendant is revoked, and the plaintiff's claim against the defendant is all dismissed.

[Attachment]

Judges Kim Jong-chul (Presiding Justice) Kim Tae-ho et al.