Rosung Co., Ltd. (Attorney Go Young-chul, Counsel for the defendant-appellant)

Defendant 1 and one other (Law Firm Democratic, Attorney Kim Sung-min, Counsel for the defendant-appellant)

March 9, 2012

1. The plaintiff's claims against the defendants are all dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The defendants shall pay to each plaintiff 207,033,753 won with 5% interest per annum from the day following the day of service of a copy of the complaint of this case to the day of adjudication, and 20% interest per annum from the next day to the day of full payment.

1. Basic facts

A. The Plaintiff is a company that distributes freezing meat, etc. The Defendant Agricultural Cooperatives Federation (hereinafter “Defendant Agricultural Cooperatives Federation”) purchased agricultural and livestock products on behalf of the Government each year on behalf of the Government and sells them in large quantities to intermediate wholesalers, and Defendant 1 is an employee of Defendant Agricultural Cooperatives.

B. On August 27, 2008, the Plaintiff entered into a sales contract with Defendant Agricultural Cooperative and Freeboard Co., Ltd. with the content that the Plaintiff shall take over from Defendant Agricultural Cooperative on a total of 3,091,331 g, and the final acquisition quantity shall be based on the actual inventory seal, and the purchase price shall be calculated as KRW 1,400 per 1 km (hereinafter “instant sales contract”).

C. When Defendant No. 3 entered into an entrustment contract with a warehouse operator and expressed his intent to take over the freezing meat in a freezing warehouse, Defendant No. 3 delivered the Plaintiff a freezing meat which is the object of the instant sales contract by ordering the warehouse operator to take over the freezing meat.

D. However, on December 5, 2008, the freezing meat, which was kept in custody, was destroyed by a fire (hereinafter “instant fire”) in the freezing warehouse located in Ischeon-si, Leecheon-si, one of the warehouses kept in freezing meat.

E. As of August 28, 2008, the Plaintiff sent to the Defendant Nonghyup Co., Ltd. an official letter stating, “The following items among the freshed freshed fresh fresh fresh fresh fresh fresh fresh fresh fresh fresh fresh fresh fresh fresh fresh fresh fresh fresh fresh fresh, and the date of the transfer of shipment, August 28, 2008, the date of the transfer of shipment, and the head of the livestock industry distribution division of the Defendant Nonghyup Co., Ltd. sent the order from the Plaintiff to the head of the regional headquarters of the Agricultural Cooperatives, the Plaintiff requested the transfer of the owner, stating, “The fresh fresh fresh fresh fresh fresh f

F. It is common that the Plaintiff et al., immediately after the Plaintiff et al. requested the Defendant Agricultural Cooperative to remove the freezing meat immediately from the warehouse. However, the Plaintiff et al., the Plaintiff et al., leaving the freezing meat in the warehouse as it is, changing the shipment requester so that the third party may request shipment from the Defendant Agricultural Cooperative upon entering into a sales contract with the Plaintiff et al., who entered into the sales contract with the third party.

G. On April 21, 2009, Defendant Agricultural Co., Ltd. paid the Plaintiff compensation amounting to KRW 119,153,95 won (= KRW 58,123.9k x 2,050) as to the land limit 58,123.9kg, sent by the Plaintiff, among the land areas destroyed by the instant fire, on August 28, 2008, with the compensation rate of KRW 119,153,95 (=58,123.9k x 2,050).

H. Meanwhile, according to the instant sales contract, the Plaintiff paid KRW 4.1 billion to Defendant Nonghyup on August 26, 2008 as well as KRW 1 billion on the down payment on December 23, 2008, and thereafter, the Plaintiff paid KRW 23,034,262 to Defendant Nonghyup on December 26, 2008 and KRW 23,034,262 on January 209 and January 21, 2009, respectively.

[Reasons for Recognition] Facts without dispute, Gap evidence 1-1, 2, 6, 7, Gap evidence 5, Eul evidence 3-1 to 3, 5-1, 6-1 through 3-3, and the purport of the whole pleadings

2. Determination as to the cause of the tort claim

A. The plaintiff's assertion

(1) By December 23, 2008, the Plaintiff paid KRW 4.1 billion to Defendant Agricultural Cooperative. The Plaintiff determined that there was no money to be additionally paid to Defendant Agricultural Cooperative, except for the shortage of warehouses and the amount destroyed by fire from the land area stipulated in the instant sales contract. However, Defendant Agricultural Cooperative applied to the Plaintiff for the fire insurance amount of KRW 2,400 for the amount destroyed by the fire in the instant case, and the Plaintiff subsequently agreed to pay the sales amount of KRW 30,00,000 to Defendant Agricultural Cooperative on December 26, 2008, including KRW 23,034,262 from January 20, 209, and the total amount of KRW 30,3236,300,000 from the total amount of the fire in the instant case, excluding the total amount of the fire in the instant case, excluding the total amount of KRW 30,3236,437,329,326,37,207.

(2) Since the Plaintiff paid the purchase price to the land destroyed by the instant fire, all the fire insurance money that Defendant Nonghyup received from the Plaintiff should be attributed to the Plaintiff. However, even if Defendant Nonghyup received the fire insurance money calculated as KRW 2,455 per 1 km with respect to all the 132,866.7kg fire that was destroyed by the instant fire, Defendant 1 is limited to 120,371.4 km with respect to the 120,371.4 km, and among them, only compensation calculated as KRW 2,050 per kg with respect to the 58,123.9 g with respect to the 52,247.5 g is impossible, and compensation was paid to only KRW 119,153,95, which was part of the fire insurance money received by Defendant Nonghyup.

(3) Defendant 1’s deception or embezzlement as above: ① (i) 74,742.8kg on land where the Plaintiff was not paid any compensation at all (i) 132,866.7km - 58,123.9kg on land where the Plaintiff was partially paid any compensation (i.e., 74,742.8kg x 2,455 won) 183,493,574 won (i.e., 74,742.8k x 2,455 won); and (ii) 58,123.9kg on which the Plaintiff was paid some compensation (i.e., 1k compensation 2,455 won per g, 2,050 won per actual paid by the Plaintiff); (ii) 23,504,179,375 won per 2,375g on land; and (iii) 305g,475 won per tort; and (i) 2537.7)

B. Determination

(1) First, we examine Defendant 1’s liability for damages arising from Defendant 1’s deception.

The plaintiff asserts that the defendant 1 caused damage to the plaintiff by deceiving the plaintiff by making false statements about the amount of insurance money actually received by defendant 1.

In order to establish liability for damages caused by deception, one of the parties to a transaction shall be liable for a legal act which is deemed not to have been caused by deception, and the other party would not have caused such deception (see Supreme Court Decision 2004Da62641, Apr. 12, 2007).

However, it is reasonable to view that there is no ground to view that Defendant No. 1 was liable to notify the Plaintiff of the amount of insurance proceeds received from the insurance contract concluded with Defendant No. 1 with the third party, which is the other party to the insurance contract of Defendant No. 1. However, there is no argument or proof as to the fact that the Plaintiff had such obligation with Defendant No. 1. However, there is no specific assertion about the Plaintiff’s act of deception against the Plaintiff. Therefore, the Plaintiff’s above assertion is without merit, without examining the remainder of the issue.

(2) Next, we examine Defendant 1’s liability for damages arising from the embezzlement.

In order to establish the liability for damages caused by embezzlement against Defendant 1, Defendant 1 should be recognized to have embezzled or refused to return the goods owned by the Plaintiff, even though Defendant 1 kept them under the legal or de facto consignment relationship with the Plaintiff, and there is no assertion or proof as to the fact that Defendant 1 had a legal or de facto consignment relationship with which the Plaintiff should keep fire insurance money for the Plaintiff. Thus, the Plaintiff’s above assertion is without merit without any need to further examine the remainder of the issue.

(3) We examine Defendant Nonghyup’s employer’s liability.

The employer’s liability against the Plaintiff is premised on Defendant 1’s tort, which is Defendant 1’s employee, on the premise that the damage was incurred to the Plaintiff. As seen earlier, Defendant 1’s tort against the Plaintiff cannot be recognized. As such, this part of the Plaintiff’s assertion is without merit to further examine the remainder.

3. Determination as to the cause of claim for return of unjust enrichment

A. The plaintiff's assertion

The Plaintiff paid the full purchase price of 132,866.7km to Defendant Agricultural Cooperatives. Defendant Agricultural Cooperatives received the fire insurance money of 2,455 won per 1 kilogram with respect to all the land areas destroyed by the instant fire 132,866.7km, and even if it received the fire insurance money of 132,455 won per kilogram, it shall be paid only KRW 119,153,995 won per 1 kilogram with respect to 58,123.9km out of the said fire insurance money, and only KRW 207,03,753 [1] 207,742.8k x 257g x 257 g 45g x 257 g 57 g x 457 g 257 g x 457 g 757 g g x 2545g g g m 25.

B. Determination

In order to establish a claim for return of unjust enrichment to the Plaintiff, Defendant Agricultural Co., Ltd. without any legal ground and thereby, thereby causing damage to the Plaintiff. However, even according to the Plaintiff’s assertion, Defendant No.C. received fire insurance money based on the insurance contract concluded by Defendant No.C., and thus, it cannot be deemed that Defendant No.C. obtained a considerable amount of insurance money without any legal ground. In addition, as long as Defendant No.C. received insurance money from the Plaintiff even though the insured was entitled to receive insurance money from the Plaintiff under an insurance contract, it is difficult to view that there exists causation between Defendant No.C.’s receipt of insurance money and the Plaintiff’s damage, unless Defendant No. 3 received insurance money from the Plaintiff.

4. Determination on the grounds of the claim

A. The plaintiff's assertion

Although the Plaintiff paid the full amount of the purchase price for the instant land destroyed by the instant fire to Defendant Nonghyup, it did not receive the land from Defendant Nonghyup due to the said fire. Defendant Nonghyup received the fire insurance money in lieu of the said land which was the object of the contract due to the instant fire, the Plaintiff may claim against Defendant Nonghyup for the payment of the said fire insurance money (i.e., the Plaintiff) (i) KRW 207,033,753 [i.e., KRW 74,742.8km (i) the amount of the 132,86.7kg - KRW 58,123.9k - KRW 255g of the 377,457,257 of the 45g amount of the 45g amount of the 132,56.7k amount of the 15g amount of the 375g amount of the 3rd amount of the 45g amount of the 3rd amount of the 3rd amount of the 5g amount of the compensation (ii).

B. Determination

(1) First, we examine the part concerning the land-based 74,742.8 km (Provided, That the defendant's assertion that it is only 62,247.5 km) asserted that the plaintiff was not paid any compensation among the land areas destroyed by the fire of this case.

In order for the subject claim to be recognized, the obligation with respect to individual goods or rights shall be established. As such, in the case of class claims, the subject claim shall not be accepted unless the subject claim is specified by a specific object. Therefore, whether the object of the obligation to deliver to the Plaintiff by Defendant Nonghyup at the time of the instant fire is specified in the above land area 74,742.8kg.

Comprehensively taking account of the overall purport of the arguments in Gap evidence No. 1-1, the plaintiff entered into the sales contract of this case with defendant No. 1 on August 27, 2008, the total amount of the contract quantity the plaintiff should take over with respect to freezing meat purchased by defendant No. 3,091,31 g, and the total quantity of the final acceptance quantity shall be based on the actual inventory seal (Article 3(1) of the contract). The plaintiff must take it out with the approval of defendant No. 3 at the time of shipment (Article 6(1) of the contract). The plaintiff cannot claim that the plaintiff was returned and clean for any reason such as quality, weight, etc. after the acceptance, as the plaintiff was present at the time of inspection and inspection, and the plaintiff cannot claim that the contract of this case was concluded (Article 6(3) of the contract). The defendant No. 3 concluded an entrustment contract with the warehouse operator and kept it in freezing and the plaintiff expressed his intention to take it out to the plaintiff's warehouse.

In light of these facts, it is reasonable to view that the Plaintiff and the Defendant AF determined the subject matter of the instant sales contract only as the kind and quantity and concluded the instant sales contract. Therefore, it is reasonable to view that the Plaintiff’s obligation to transfer the Plaintiff upon the instant sales contract is a kind of obligation, and that the Plaintiff, the buyer, expressed his intent to acquire the goods to Defendant AF by the method of request for delivery to Defendant AF, and that it is reasonable to regard that the subject matter of the instant sales contract is specified only by taking the land from the freezing warehouse after obtaining approval from Defendant AFF.

However, according to the Plaintiff’s assertion, the Plaintiff did not request the delivery of the above 74,742.8kg land to Defendant Nonghyup, but only paid the purchase price for the part destroyed by fire in order to be settled the fire insurance money received by Defendant Nonghyup. The Plaintiff did not request the delivery of the fire to Defendant Nonghyup and take the above 74,742.8kg land out of the freezing warehouse where the land was stored with the approval of Defendant Nonghyup. Thus, at the time of the instant fire, it cannot be deemed that the object of the Defendant Nonghyup’s delivery obligation was specified as this part of the land at the time of the instant fire, and there is no other evidence to prove the same.

Thus, at the time of the fire of this case, it cannot be deemed that the object of the payment obligation of Defendant Nonghyup was specified as the above 74,742.8kg land and it cannot be viewed as a specific object claim. Therefore, there is no room to establish the claim for payment. Therefore, the plaintiff's above assertion is without merit without examining the remainder of the issue.

(2) Next, we examine the part concerning the land limit 58,123.9kg, which the Plaintiff asserted that part of the land limit, which was destroyed by the instant fire, was paid as compensation.

In order to recognize the right to claim the subject matter, the performance should be impossible later, and the debtor should acquire the benefit on behalf of the subject matter of the claim as a result of the circumstance of making the performance impossible (see Supreme Court Decision 2003Da35482, Nov. 14, 2003). In other words, if the debtor has performed the performance to the creditor, there is no room for recognizing the right to claim the subject matter.

Therefore, it is examined as to whether Defendant Agricultural Cooperatives, at the time of the instant fire, had the duty to deliver the land to the Plaintiff as above 58,123.9km.

In light of the above facts, the defendant Nonghyup Co., Ltd. entered into an entrustment contract with a warehouse operator and expressed the plaintiff's intent to take over freezings, and delivered freezings to the plaintiff by ordering the warehouse operator. On August 28, 2008, with respect to 58,123.9 g from among the finites destroyed by the fire of this case, the plaintiff was stated as follows: "No. 208. 8. 28. 28. 2008. 3. 2. 3. 2. 3. 3. 2. 3. 2. 1. 2. 8. 2. 2. 3. 2. 2. 3. 208 . 3. 1. 206 . 3. 1. 206 . 8. 2. 8. 206 . 1. 2. 2. 2. 206 . 3's delivery order to the plaintiff No. 2. 2. 3. 3. 8. 3. . . 3. 3. . 3. 20. . . . . . 28. . . . 3. . . . 20. . . . 3. . . . . . . . . . . . . . . . . . . . . . .

Therefore, as to the above 58,123.9kg land at the time of the fire of this case, Defendant Agricultural Cooperative cannot be deemed to have been unable to perform its duty because it fulfilled its duty to the Plaintiff. Thus, the Plaintiff’s above assertion is without merit to further examine the remainder.

5. Conclusion

Therefore, all of the claims of this case against the Defendants are dismissed. It is so decided as per Disposition by the assent of all participating Justices.

Judges Kim Jong-sung (Presiding Judge)