2014Da49296 Damage, Claim

Ssung Co., Ltd.

B

Seoul High Court Decision 2013Na50222 Decided June 27, 2014

June 11, 2015

The part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the Seoul High Court.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. As to the first preliminary claim against the defendant on behalf of the co-defendant A (hereinafter referred to as "A"), the lower court determined that the defendant received a promissory note from the defendant on behalf of the co-defendant A (hereinafter referred to as "A") and agreed to pay the remainder of discount fees excluding discount fees. The defendant received a discount note 44 from A, and the defendant received a discount charge from the defendant, and since 436,579,615 won remain when the defendant deducteds the amount paid from the discount charge, the defendant bears the obligation to pay the discount amount. Furthermore, the lower court rejected the defendant's assertion that the defendant's claim against the Co-Defendant A (hereinafter referred to as "C") and D (hereinafter referred to as "D") against the defendant under a set-off contract between the defendant and A and the representative director of A, it is difficult to find that there was no evidence that the defendant's right to set off the amount of discount against the defendant's claim against the defendant A, which is a set-off against the defendant's claim against the defendant A, as above, and there is no evidence that there exists any set-off between D and D.

(1) The presiding judge of the fact-finding court is obliged to urge the parties to testify in all cases without proof in the absence of proof (see, e.g., Supreme Court Decision 94Da10726, May 13, 1994) in a case where it is evident that the parties concerned were not proven due to negligence or misunderstanding in light of the degree of litigation, even if there is no proof.

(2) According to the reasoning of the judgment below and the record, the plaintiff alleged that "C was a de facto one company of A through the complaint, and A was established and carried out as a de facto representative director on the ground of ASEAN after the closure of the business, and Eul was a formal representative director of D. A, A stated in the newspaper of the party concerned in the first instance court and the examination of the witness of the court below that he was a de facto representative director or operator of D, and the plaintiff did not have the authority to act as a representative director or operator of D in relation to the offset contract by the date of the closing of argument in the court below.

(3) As above, it is reasonable to deem that the Defendant did not prove the fact that A has no dispute over the fact that A has the authority to act as a proxy in entering into a offset contract with the Defendant, as well as that the Plaintiff voluntarily asserted that A was the actual representative director of D, and that A has the authority to act as proxy in relation to a offset contract.

(4) Therefore, the lower court rejected the Defendant’s assertion that: (a) the Defendant had agreed to set off a bill discount claim against the Defendant and a claim against the Defendant for the payment of goods against A on the ground that (b) the Defendant had to exercise the right of explanation and urge the Defendant to prove whether A has the authority to act as a proxy for a set-off contract; (c) however, the lower court failed to take such measures and there was no proof as to whether A had the authority to act as a proxy for a set-off contract; and (d) thus, the lower court erred by failing

3. Next, the lower court’s determination is difficult to accept for the following reasons, on the grounds that there is no evidence to prove that the Defendant and A set-off contract set-off against the Defendant’s goods-price claim against the Defendant C and the bill discount claim against the Defendant A.

(1) According to the reasoning of the lower judgment and the record, A, the representative director of C, from December 21, 2009 to January 8, 2010, requested the Defendant to discount of 200 million won in total from 14,366,00 won for bill discount, and the Defendant paid 15,00 million won for bill discount to the account designated by A, after deducting 35,634,00 won for part of the Defendant’s claim for the payment of the goods to C, and 15,00 won for bill discount. Meanwhile, the Defendant paid 70,000 won at a discount of 1,50,000 won for bill discount from the issuer of Puss Co., Ltd. (hereinafter “Puss”), 17,500,000 won for bill discount from the issuer of C, and the Defendant paid 1,000,000 won for the remaining amount after deducting 1,000,000 won for bill discount from the issuer of A.

(2) The following circumstances revealed through the above recognition: (a) at the time when the Defendant received three copies of a promissory note in which C is an addressee before D is established, C bears the obligation to pay the above obligation to the Defendant as the representative director of C; and (b) the Defendant did not raise any objection despite the Defendant’s deduction of some of the Defendant’s claim for the payment of a discount amount; (c) at the time of the discount of a promissory note in which A deducts the amount of the face value of a promissory note in which A is already refused to pay at the discount; and (d) the Defendant paid the discount amount to A or the Defendant under an agreement to pay the discount amount of the discount amount after deducting the Defendant’s claim for the payment of a discount amount from the discount amount. If there is no benefit to deduct the face value of a promissory note in which A is issued at discount, the Defendant would have to pay the discount amount from the existing discount amount to C or the Defendant’s delivery of the discount amount from the discount amount. In light of the above circumstances, there is sufficient reason to view that the Defendant and C and the Defendant paid the discount amount from the discount amount to C or discount amount.

(3) Nevertheless, the lower court rejected the Defendant’s assertion that the Defendant and A set-off contract set-off the Defendant’s goods-price claim against the Defendant C and the bill discount claim against the Defendant. In so doing, it erred by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, thereby affecting the conclusion of the judgment.

4. Therefore, without examining the remaining grounds of appeal, the part against the defendant among the judgment below against the defendant is reversed, and that part of 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 Park Sang-hoon

Justices Kim Jae-tae

Chief Justice Cho Jae-hee

Justices Park Sang-ok