(영문) 광주고등법원 2018.8.22.선고 2017나14474 판결

1. The part of the judgment of the court of first instance against the plaintiff falling under the following amount shall be revoked. The defendant shall pay to the plaintiff 25 million won with 5% interest per annum from August 30, 2017 to August 22, 2018, and 15% interest per annum from the next day to the day of complete payment.

2. The plaintiff's remaining appeal is dismissed.

3. 9/10 of the total costs of litigation shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

4. The part concerning the payment of money under paragraph (1) may be provisionally executed.

Purport of claim and appeal

The judgment of the court of first instance is revoked. The defendant shall pay to the plaintiff 325,00,000 won and 300,000,000 won among them from the day following the delivery date of a duplicate of the complaint of this case; 25,000,000 won from the day after the delivery date of the purport of the claim of this case; and 5% per annum from the day following the day after the delivery date of a duplicate of the application for modification of the cause of the claim of this case until the day after the delivery date of each judgment of first instance; and 15% per annum from the next day to the day of full payment (the plaintiff reduced the agreed amount at the trial; the purport of the appeal was reduced to the extent of its reduction).

Reasons

1. Determination on the claim for the purchase price

(a) Basic facts;

1) On March 30, 2005, the Plaintiff entered into a contract with the Defendant to sell each of the real estate listed in the separate sheet (hereinafter referred to as “instant real estate”) owned by the Plaintiff (hereinafter referred to as “instant sales contract”). The part of the sales contract prepared at the time (hereinafter referred to as “instant sales contract”) which was charged to the sales price is as follows.

The purchase price: KRW 1.5 billion is paid at the time of the contract ( March 30, 2005), the intermediate payment of KRW 500 million at September 30, 2005, and the remainder of KRW 700 million at March 30, 2006, respectively.

2) On April 27, 2006, the Plaintiff completed the registration of transfer of ownership on the instant real estate by the co-defendant A, a co-defendant A, a representative director of the first instance trial.

3) On June 22, 2007, the Plaintiff and the Defendant drafted a certificate of payment of real estate value (hereinafter “certificate of this case”) with respect to the instant sales contract, as follows:

1. OO Credit Guarantee Co., Ltd. (450,000,000 won) 2.0 million won (450,000,000 won) for the disposal of liabilities of OO Credit Guarantee Co., Ltd. and 2.0 million won (2.50,000 won, 00 won) for the settlement of liabilities of OOO Credit Guarantee Co., Ltd. and 3.0 million won (2.50,000 won, 00,000 won, 10,000 won (10,000 won, 10,000 won, 10,000 won, 10,000 won, 10,000 won, 10,000 won, 10,000 won, 10,000 won, 10,000 won, 20,000 won, 60,000 won, 10,000 won.

[Ground of recognition] Unsatisfy, Gap evidence Nos. 1 through 3 (if any, numbered)

B. Summary of the parties' assertion

The plaintiff asserts that the purchase price of the sales contract of this case was KRW 1.5 billion, and the plaintiff received only KRW 1.2 billion from the defendant, so the defendant is obligated to pay the remaining KRW 300 million to the plaintiff.

As to this, the Defendant paid the sales amount of KRW 1.2 billion, and even if it did not pay KRW 300 million out of the sales amount as alleged by the Plaintiff, the Defendant held that the Plaintiff’s outstanding claim for the remainder of the sales amount was extinguished due to the completion of prescription.

C. Determination

1) As long as the formation of a disposal document is recognized as genuine, the court shall recognize the existence and content of the expression of intent in the language and text as stated in the disposal document unless there is any clear and acceptable counter-proof that the content of the statement is denied (see Supreme Court Decision 2002Da6753, Jun. 11, 2002, etc.). However, even if a disposal document is proved as genuine, where there is a counter-proof or there is a reasonable ground to deem the contents stated in the written statement as contrary to objective truth, its probative value may be rejected (see Supreme Court Decision 93Da57117, Feb. 8, 1994, etc.).

2) In light of the above legal principles, the facts that the sales contract of this case entered the sales price in KRW 1.5 billion are as seen earlier. However, in light of the aforementioned facts and the aforementioned facts, and the circumstances such as the following facts and evidence, Gap evidence No. 4, and Eul evidence No. 1, it is difficult to believe the part concerning the sales price stated in the instant sales contract as they are, and it is reasonable to view that the sales price of this case is KRW 1.2 billion as alleged by the defendant. Accordingly, the Plaintiff’s assertion on the premise that the sales price of this case is KRW 1.5 billion is without merit.

① The confirmation of this case is written in KRW 1.2 billion, and there is no mentioning about other trade deposits.

② The confirmation of this case states that KRW 1.15 million out of the purchase price shall be paid, deducted, or exempted, and that the balance shall be KRW 1.2 billion, which is the difference between KRW 1.155 billion and KRW 1.150 million as stated in the confirmation document of this case, shall be converted into a deposit for lease. However, if the purchase price of this case is KRW 1.5 billion as alleged by the Plaintiff, it is reasonable to enter the confirmation document of this case into the matters concerning the payment of KRW 350 million, excluding KRW 50 million, which was agreed to convert into a deposit for lease, or the remaining matters concerning the payment of KRW 30 million, which was excluding KRW 50 million, which was agreed to convert into a deposit for lease. The confirmation document of this case does not state such matters.

③ The instant confirmation document was prepared by the Plaintiff and the Defendant for the settlement of the sales price of the instant sales contract, and it is difficult for the Plaintiff and the Defendant to find out the reasons why the said contract was falsely prepared. The Plaintiff and the Defendant stated in the instant confirmation document as follows: “The Plaintiff and the Defendant recognized the existence of any civil or criminal issues between both parties, which would not bring about any civil or criminal issues due to the said case.”

④ On April 22, 2013, May 10, 2013, and May 28, 2013, the Plaintiff sent to the Defendant a certificate of the content demanding the payment of the price for the instant sales contract. The content certification does not entirely contain any content demanding the Plaintiff to pay the remainder of KRW 300 million of the purchase price of the instant sales contract, which is the main place in the instant lawsuit. Moreover, the Plaintiff did not recognize the Defendant’s liability for the payment of the price for the instant sales contract, and the Plaintiff sent the Defendant a certificate of the content demanding the Defendant to pay the remainder of the purchase price of the instant sales contract and KRW 300 million of the remainder of the purchase price of the instant sales contract only after the Defendant did not recognize the obligation for the payment of the price for the instant sales contract. On the other hand, it is not found that the Plaintiff urged the Defendant to pay the remainder of the purchase price of the instant sales contract for about six years from the date the instant certificate was prepared and sent.

⑤ At the time of the contract ( March 30, 2005), the instant sales contract states that the intermediate payment of KRW 500 million is paid respectively on September 30, 2005, and the remainder of KRW 700 million on March 30, 2006. The Plaintiff did not actually pay the down payment on the date of the contract. As indicated in the instant certificate, KRW 700,000 out of the purchase price is deemed to have been disposed of as substitute for the payment by the Defendant’s liquidation of the debts owed to ○○○ Credit Depository and Lee○ and two other. Considering that the purchase price paid to the Plaintiff as a check was paid on June 28, 2007, KRW 400,000,000,000,000,000,000,000,000,000,000,000,000,000,000,00,00,00.

(6) The testimony of a senior ○○○ witness of the first instance trial, who seems consistent with the Plaintiff’s assertion, is difficult to believe as it is in view of the above circumstances and the relationship between the Plaintiff and ○○○○. The testimony of the witnesses of the first instance trial is insufficient to recognize the fact that the purchase price of the instant sales contract is KRW 1.5 billion, and there is no other evidence to prove otherwise.

2. Determination on the claim for agreed amount

A. Determination on the cause of the claim

1) There is no dispute between the parties, or in full view of the overall purport of the pleadings in the statements in Gap evidence Nos. 4 and Eul evidence No. 2, the defendant borrowed from the plaintiff around 2004,

According to the above facts, it is recognized that the Defendant agreed to pay the Plaintiff KRW 25 million as the royalty for the instant crowdfunding, until October 30, 2013, and barring any special circumstance, the Defendant is obligated to pay damages for delay calculated at each rate of 15% per annum as prescribed by the Civil Act, from August 30, 2017, the day following the delivery date of a copy of the application for change of the purport of the instant claim and the cause of the claim, to the Plaintiff, as the Plaintiff seeks after the due date. Thus, barring any special circumstance, the Defendant is obligated to pay damages for delay calculated at each rate of 25% per annum as stipulated by the Act, from August 30, 2017, which is the date of the ruling of the first instance, until August 22, 2018, and from the next day until the date of full payment.

2) As to this, the Defendant alleged that the content certification of the instant case constitutes an offer to set the fee of KRW 25 million for the instant crowdfunding. However, since the Plaintiff did not accept such an offer, the agreement on the payment of the price for crowdfunding was not concluded, and thus, even if the agreement was concluded, it is merely a year’s obligation, and thus, the Plaintiff cannot seek the payment of the price for crowdfunding from the Defendant.

However, as seen earlier, the Plaintiff and the Defendant promised to pay KRW 25 million to the Defendant by October 30, 2013 as the ten-year usage fees of the instant crowdfunding.” In light of the text of the content certification, etc. of the instant case, the content certification of the instant case shall be deemed to have expressed the Defendant’s intent to make a final payment of KRW 25 million as the usage fees of the instant crowdfunding. Moreover, even if the Defendant appears to have subscribed for the settlement of the usage fees of the instant crowdfunding, it is reasonable to view the content certification of the instant case as having explicitly consented to the Plaintiff’s promise to pay KRW 25 million from the Plaintiff’s complaint to the Defendant after obtaining the content certification of the instant case (from the Plaintiff’s complaint, the Plaintiff shall be deemed to have explicitly consented to the Plaintiff’s promise to pay KRW 25 million as the usage fees of the instant crowdfunding, in light of the fact that the Plaintiff agreed to do so).

On the other hand, the natural obligation refers to the obligation that the obligee could not seek as a lawsuit even if the obligor does not voluntarily pay. The evidence submitted by the Defendant alone is insufficient to recognize the Defendant’s obligation to use the event of this case as a natural obligation, and there is no other evidence to acknowledge this differently.

Therefore, all of the defendant's arguments are without merit.

B. Judgment on the defendant's defense of extinctive prescription

The Defendant returned the instant crowdfunding to the Plaintiff on or around June 2004, and the instant lawsuit was filed on December 28, 2016 after the lapse of 10 years from the date on which the instant crowdfunding was returned, and accordingly, the Defendant’s defense that the instant crowdfunding royalty claim asserted by the Plaintiff was extinguished by prescription.

However, there is no evidence that the Plaintiff and the Defendant agreed to pay the instant crowdfunding fee at a fixed period of not more than one year, or that there was no evidence that the instant crowdfunding fee was incurred as a result of a commercial activity between the Plaintiff and the Defendant. As to the instant crowdfunding fee claim, the ten-year extinctive prescription period under Article 162(1) of the Civil Act shall apply.

However, as seen earlier, the maturity date of the instant crowdfunding claim is October 30, 2013, and it is evident that the instant claim was filed on December 28, 2016, for which ten years have not passed since it was filed on December 28, 2016.

Therefore, the defendant's defense of extinctive prescription is without merit.

3. Conclusion

Therefore, the defendant is obligated to pay to the plaintiff 25 million won and 5% interest per annum from August 30, 2017 to August 22, 2018, and 15% interest per annum from the next day to the day of full payment. Thus, the plaintiff's claim is justified within the above recognition scope, and the remainder of the claim shall be dismissed as it is without merit. Of the part against the plaintiff in the judgment of the court of first instance, part of the conclusion is unfair.

Therefore, the plaintiff's appeal partially accepted the appeal and revoked it and ordered the defendant to pay the money above, and the remaining appeal by the plaintiff is dismissed as it is without merit. It is so decided as per Disposition.