[1] Standard for determining the share of the obligor jointly and severally liable for repayment and other joint discharge at his own expense, and whether such a legal principle applies likewise to cases where an indivisible obligor, who received a joint discharge at his own expense, exercises the right of recourse against the other obligor (affirmative)

[2] The probative value of a fact recognized in a civil case established in a civil trial

[1] When a person jointly and severally liable obtains the repayment or other discharge from his/her own account, he/she may exercise the right to indemnity against the other person jointly and severally liable, and the share to be borne, at this time, shall be presumed to be equal (Articles 425(1) and 424 of the Civil Act). However, if there is a special agreement between the persons jointly and severally liable on the portion to be borne, or if there is a difference in the profit ratio of each debtor in relation to the bearing of the obligation

Such legal doctrine likewise applies to cases where an indivisible obligor, who is subject to the provisions concerning the share jointly and severally liable and the right to indemnity under Article 411 of the Civil Act, exercises a right to indemnity against another obligor when he/she obtains an indivisible obligation or a joint exemption from liability at his/her own expense. If there is no special agreement between the obligors on the share of the obligor, or if there is no special agreement between the obligor and the obligor, the share of the obligor is determined by such special agreement or proportion. Accordingly, when the obligor obtains a joint

[2] Even though it is not bound by the facts established in a judgment on other civil cases, etc. in a civil trial, the facts established in the relevant civil case already established are valuable evidence, barring special circumstances, and thus, it shall not be rejected without presenting reasonable grounds.

[1] Articles 411, 413, 424, and 425(1) of the Civil Act / [2] Article 202 of the Civil Procedure Act

[1] Supreme Court Decision 2012Da97420, 97437 Decided August 20, 2014 (Gong2014Ha, 1791), Supreme Court Decision 2013Da49404, 49411 Decided August 26, 2014 / [2] Supreme Court Decision 2008Da92312, 92329 Decided September 24, 2009 (Gong2009Ha, 1740), Supreme Court Decision 2010Da22552 Decided May 26, 201 (Gong201Ha, 1278)

Plaintiff (Law Firm Sin Line, Attorneys Kang Jin-jin et al., Counsel for the plaintiff-appellant)

Defendant (Law Firm Lee & Lee, Attorneys Lee Hun-hoon et al., Counsel for defendant-appellant)

Seoul High Court Decision 2019Na200925 decided January 9, 2020

All appeals are dismissed. The costs of appeal by the Plaintiff are assessed against the Plaintiff, and the costs of appeal by the Defendant are assessed against the Defendant.

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

1. Progress of the case

The reasoning of the lower judgment and the record reveal the following facts.

A. On May 8, 2013, the Plaintiff and the Defendant shared 1/2 shares of the instant real estate comprised of the instant building and site of the hotel and the instant real estate annexed thereto. On the other hand, the Plaintiff and the Defendant concluded the instant sales contract with Nonparty 1, selling all of the instant real estate and the instant corporeal movables, including various facilities and equipment of the said hotel, to KRW 11,250,000,000. Nonparty 1 paid KRW 50,000 (hereinafter “the first down payment”) to the Plaintiff and the Defendant as the down payment (hereinafter “the instant down payment”), and KRW 625,00,000,00 (hereinafter “the second down payment”) on May 31, 2013 (hereinafter “the first and second down payment”).

B. On October 30, 2013, Nonparty 1 filed a lawsuit against the Plaintiff and the Defendant claiming the return of the instant down payment by asserting that the instant contract was rescinded due to the delay of the performance of the Plaintiff and the Defendant (Seoul Central District Court 2013Da551810). The said court rendered a judgment dismissing Nonparty 1’s claim on June 27, 2014. The said judgment was dismissed and the final appeal by Nonparty 1 became final and conclusive on August 13, 2015 (Seoul High Court 2014Na2023018, Supreme Court 2015Da217096, hereinafter “first return lawsuit”).

On November 16, 2015, Nonparty 1 filed a lawsuit against the Plaintiff and the Defendant claiming that the instant sales contract was rescinded by the Plaintiff and the Defendant’s non-performance refusal (Seoul Central District Court 2015Gahap571818). On June 17, 2016, the said court rendered a judgment ordering Nonparty 1 to jointly pay the instant down payment and the statutory interest and delay damages therefor jointly with the Plaintiff and the Defendant. The said judgment was dismissed and the Defendant’s appeal became final and conclusive on September 21, 2017 (Seoul High Court 2016Na2046275, Supreme Court 2017Da229024, hereinafter “second returned lawsuit”).

C. On April 13, 2017 and April 14, 2017, the Plaintiff paid the instant down payment, etc. to Nonparty 1 according to the final and conclusive judgment in the second return lawsuit, and among them, filed the instant lawsuit seeking reimbursement against the Defendant’s share of expenses.

2. Judgment on the Plaintiff’s grounds of appeal

A. When a person jointly and severally liable obtains a joint discharge from liability due to repayment or other one’s own withdrawal, the portion to be borne by the other person jointly and severally liable is presumed to be equal (Articles 425(1) and 424 of the Civil Act). However, if there exists a special agreement on the portion to be borne by the jointly and severally liable or there is a difference in the profit ratio of each debtor in relation to the bearing of the obligation, the portion to be borne shall be determined according to the special agreement or ratio (see Supreme Court Decisions 2012Da97420, 97437, Aug. 20, 2014; 2013Da49404, 49411, Aug. 26, 2014).

Such legal doctrine likewise applies to cases where an indivisible obligor, who is subject to the provisions concerning the share jointly and severally liable and the right to indemnity under Article 411 of the Civil Act, exercises the right to indemnity against another obligor when he/she obtains an indivisible obligation or a joint exemption from liability at his/her own expense. If there is no special agreement between the obligors on the share of the obligor, or if there is no special agreement between the obligor and the obligor, but the share of the obligor is determined by such special agreement or proportion. Accordingly, when the obligor obtains a joint exemption

Even though it is not bound by the facts established in a judgment on other civil cases, etc. in a civil trial, it shall not be rejected without presenting reasonable grounds (see Supreme Court Decisions 2008Da92312, 92329, Sept. 24, 2009; 2010Da22552, May 26, 201).

B. While considering that the Plaintiff and the Defendant received half of the first down payment, the lower court determined that the Plaintiff was fully paid the second down payment for the following reasons, and calculated the share of the Plaintiff and the Defendant’s apportionment of the instant down payment.

(1) On January 24, 2017, the Plaintiff asserted as follows, and filed a lawsuit against the Defendant seeking payment of settlement amount, etc. on behalf of Nonparty 2 (Seoul Central District Court 2017Gahap504928). The Plaintiff has a claim of KRW 1,300,000 against Nonparty 2 against Nonparty 2. The Defendant, on May 7, 2013, prior to the conclusion of the instant contract, issued to Nonparty 2, “The actual owner of the instant real estate is Nonparty 2 and Nonparty 2 delegated all authority to Nonparty 1.2 billion won.” Accordingly, the Plaintiff, on behalf of Nonparty 2, has the right to seek payment of the remainder of the Defendant’s share in lieu of the Defendant’s share amount.”

On February 9, 2018, the above court rendered a judgment dismissing the Plaintiff’s claim. On September 20, 2018, the appellate court rendered a judgment dismissing a part of the Plaintiff’s claim and dismissing a part of the claim (Seoul High Court Decision 2018Na2017288), and the above judgment became final and conclusive around that time (hereinafter “prior action”).

In the preceding subrogation lawsuit, the appellate court recognized the fact that “the second down payment was made to the Plaintiff” in determining the process of acquiring the instant real estate and the process of concluding the instant sales contract, and the judgment of the appellate court became final and conclusive. In the first lawsuit for return, the appellate court determined that “Nonindicted 1 delivered the second down payment to the Plaintiff.” In the receipt prepared at the time of the second down payment, only the Plaintiff’s name is indicated, and there is a difference between the receipt of the first down payment stating the name of the Defendant and Nonparty 2. The mere fact that Nonparty 2 was at the site of receiving the second down payment, it cannot be concluded that Nonparty 2 received part of the second down payment as the Defendant’s agent

(2) In the second return lawsuit, the Plaintiff determined that the obligation to return the down payment in this case was indivisible under the premise that the Plaintiff and the Defendant jointly received the down payment in this case, and accordingly, the Defendant’s apportionment ratio is 1/2. However, in this case, the Defendant’s specific burden ratio is an indivisible obligation, and the Plaintiff’s assertion is not acceptable, on the premise that the obligation to return the down payment in this case is an indivisible

(3) The Plaintiff’s apportionment ratio of the instant down payment is the ratio of the sum of KRW 250,000,000 paid by the Plaintiff among the first down payment and KRW 625,00,000 in the instant down payment. The Defendant’s apportionment ratio is the ratio of KRW 250,000,000 in the instant down payment out of the first down payment.

C. Examining the reasoning of the lower judgment in light of the foregoing legal doctrine and the evidence duly admitted, the lower judgment is justifiable. In so determining, the lower court did not err by misapprehending the legal doctrine regarding the probative value of a final and conclusive judgment, indivisible obligation for reimbursement, and vicarious act,

3. Judgment on the Defendant’s grounds of appeal

A. For the following reasons, the lower court determined that the Plaintiff could exercise the right of reimbursement against the Defendant’s portion of the instant down payment liability, on the grounds that the Defendant received KRW 250,000,000, out of the first down payment KRW 500,000,000.

In the preceding subrogation lawsuit, the appellate court recognized that “The first down payment of KRW 500,000,000 was paid to the Plaintiff and the Defendant ( Nonparty 2, who received the said money as the Defendant’s representative, and subsequently prepared and delivered a receipt to Nonparty 1)” and the appellate court judgment became final and conclusive. In light of the following circumstances, it is insufficient to view that the evidence submitted by the Defendant alone was insufficient to prove that there was a special circumstance to recognize the final and conclusive judgment of the preceding subrogation lawsuit

On May 7, 2013, the Defendant drafted the instant promise to Nonparty 2. On May 8, 2013, Nonparty 2 received the instant promise and concluded the instant contract and received the first down payment on behalf of the Plaintiff and the Defendant, under the circumstances at the site of the Plaintiff and the Defendant, on behalf of the Defendant, under which the Plaintiff and the Defendant were at the site. Nonparty 2 received the receipt stating “Plaintiff, Nonparty 1, Defendant, and Nonparty 2.” Accordingly, Nonparty 2 may be deemed to have received the first down payment as the agent delegated with the authority to the instant contract.

B. Examining the reasoning of the lower judgment in light of the foregoing legal doctrine and evidence duly admitted, the lower judgment is justifiable. In so determining, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence inconsistent with logical and empirical rules, or by misapprehending the legal doctrine on the probative value of final and conclusive judgment, omitting judgment, failing to exhaust all necessary deliberations,

4. Conclusion

The appeal by the Plaintiff and the Defendant is dismissed in entirety as it is without merit. The costs of appeal by the Plaintiff are assessed against the Plaintiff, and the costs of appeal by the Defendant are assessed against the Defendant. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Dong-won (Presiding Justice)