(영문) 서울중앙지방법원 2020.2.6. 선고 2019가합556442 판결

The Defendants jointly deliver 2,458 Ghana to the Plaintiff. If compulsory execution against the above mentioned interest rate is impossible, the amount calculated by the ratio of 266,600 won per one additional interest rate, and the amount calculated by the ratio of 12% per annum from the date following the date of delivery of a copy of the application for change of the purport of the claim and the cause of the claim as of January 6, 2020 to the date of complete payment.

○ Preliminary Claim: The Defendants shall pay to the Plaintiff the amount calculated by converting 266,600 won per annum into the Plaintiff at the rate of 266,600 won per annum from the day following the day of delivery of the copy of the claim and the written application for modification of the cause of the claim as of January 6, 2020 to the day of complete payment.

Reasons

1. Basic facts

A. Status of the parties

1) The Plaintiff is a person who serves as an intermediary sales measure of the so-called "joint purchase", which is sold to general investors by receiving encryptions that are currently being used to obtain profits from listing crypt and taking part in the initial development fund from many unspecified investors in order to obtain profits from listing crypt, and by taking part in the price of crypt in order to obtain profits from listing crypt. In the event that crypt is listed and transaction is activated, a high investment performance can be obtained in the event that crypt is activated, while investment risk is very high) or after completing crypt.

2) The network E (hereinafter referred to as “the network”) also served as a superior sales volume of “joint purchase” than the Plaintiff as a person engaged in the transaction and investment of encryption, and the Defendants are the parents of the Deceased.

(b) Preparation of a contract;

1) On May 10, 2018, the Plaintiff introduced the Deceased known as a person who is capable of crypting encrypted chain through ChinaD and exchanged with the Deceased and Messenger. On the same day, the Plaintiff received data on the quota chain from the Deceased.

2) On May 11, 2018, the following day, the Plaintiff drafted a written contract with the Deceased (hereinafter “instant contract”).

On 11 May 201, 2018, Party E promised to assume 740 per cent of the quota chain 740 per cent to be liable for the problem to Party A, if not sent 740 per cent of the quota chain to E by no later than 12 May 12, 2018.

3) On May 11, 2018, the Deceased sent a message to the Plaintiff on May 15:27, 2018, stating that “F” and “Nek” sent to the Plaintiff a message.

C. Death of the deceased and the waiver of inheritance or qualified acceptance by the Defendants

1) On December 2, 2018, the Deceased was found to have died at his home.

2) On January 30, 2019, Defendant B filed a qualified acceptance report with Seoul Family Court 2019Hun-Ma50368, and accepted the said report on April 15, 2019. On January 30, 2019, Defendant C filed a renunciation of inheritance with Seoul Family Court 2019, 50361, and the said report was accepted on March 26, 2019.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2, 5 through 10, 14, 15, 16 (including a serial number unless the serial number is specified; hereinafter the same shall apply), Eul evidence Nos. 1 and 3, and the purport of the whole pleadings

2. Summary of the plaintiff's assertion

A. The deceased’s obligation to the Plaintiff at the time of his death

(1) Indemnification and restoration due to cancellation of a transaction agreement;

The plaintiff sent each of the corresponding marks "B" column of "B" column of "B" column of the same Table managed by the plaintiff on the corresponding date at each of the corresponding marks "B" column of "B" column of "B" column of "B" column of "B" column of "B" column managed by the deceased (hereinafter referred to as "B" of this case according to the following table; hereinafter referred to as "the details of each transmission of this case"). On the other hand, the deceased agreed to pay to the plaintiff each of the corresponding transaction terms in "B" column of "B" column of "B" column of the same table to the plaintiff (hereinafter referred to as "each transaction agreement of this case"), but the plaintiff did not implement such agreement and thus the plaintiff cancelled each transaction agreement of this case. Therefore, the deceased was obligated to return 2,458 p.m. transmitted by the plaintiff to the plaintiff as compensation for damages and restitution to its original state.

A person shall be appointed.

2) Liability for damages caused by tort

① On May 12, 2018, immediately after the occurrence of the first transmission of the instant case, around 02:45, 800 Epicium, including 740 Epicium transmitted by the Deceased, was transmitted to TB, a Chinese virtual currency exchange, via other electronic wallets of the Deceased. On the same day, around 12:24, 64 U Exchange account of the Deceased ( approximately 595,200,000) was transmitted, and immediately after the transmission, exchanged in Korean won and remitted to V bank W account in the name of the Deceased. ② immediately after the occurrence of each transmission of the instant case, large amount of transfer was discovered; ③ The Deceased, without any intention to trade the Plaintiff immediately after the transaction with the Plaintiff, by deceiving the Plaintiff without any specific property, should be deemed to have taken account of the following circumstances: (i) the Deceased’s liability for damages from the Plaintiff’s 2,458 Epicium; and (ii) the Deceased’s liability for damages from the Plaintiff’s 2605%.

3) A duty to return interest pursuant to a return agreement on November 2018

On November 29, 2018, while the Plaintiff’s failure to perform his/her duty under each of the instant transaction agreements, the Plaintiff 1/3 fell compared to May 12, 2018, in which the Plaintiff first transmitted her ion to the Deceased. Accordingly, the Plaintiff and the investors demanded the Deceased to preserve up to the decline in the ion of the ion that was sent to the deceased. On November 3, 2018, the Deceased promised to return two times the ion that was transmitted to the Plaintiff (hereinafter referred to as the “instant return agreement”). On November 29, 2018, the Deceased received 40,000 iones (the Plaintiff’s 4,916 ions) from the Plaintiff and other investors including the Plaintiff (the Plaintiff’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son.

4) Return of unjust enrichment

Even if each transaction agreement of the instant case and the return agreement of the instant case are not recognized, the Deceased received 2,458 Epins from the Plaintiff without any legal cause as the transmission content of each of the instant case. Therefore, the Deceased was obligated to return the said 2,458 Epins to the unjust enrichment.

B. The Defendants inherited the deceased’s obligation as stated in the A. A. Claim against the Plaintiff, and thus, must perform their obligations as stated in the purport of the claim against the Plaintiff. Although the Defendants were qualified acceptance or renunciation of inheritance, they were willing to harm creditors, including the Plaintiff, and they have concealed intentionally the high-priced cultural assets among inherited property, so the Defendants’ qualified acceptance or renunciation of inheritance has no effect, and the mere acceptance should be deemed to have been made.

3. Determination

A. Whether the Deceased bears the duty to restore and compensate for the damage caused by the rescission of each of the instant transaction agreements against the Plaintiff

1) First of all, according to the purport of the evidence Nos. 3 and 12 as to whether each of the instant transmission content actually exists, the transmission content of each of the instant transmission content, excluding the transmission content Nos. 5 and 6 of the instant transmission content, can be acknowledged as having actually existed. However, with respect to the transmission content Nos. 3-3 and 4 of the instant transmission content submitted by the Plaintiff in order to support the alleged facts, the transmission date is indicated as Jul-11-2018 ( July 11, 2018), Jul-22-2018 ( July 22, 2018) and as evidence Nos. 11, 13 transmission content, as evidence Nos. 12-7, 9 of the instant transmission content, and no other evidence exists to acknowledge the existence of the transmission content Nos. 5 and 6 of the instant transmission content (excluding the transmission content of each of the instant case). The Plaintiff’s allegation in this part of the instant transmission content is without merit.

2) As to whether the transmission content of each of the instant transmission content was “the Plaintiff’s “the deceased” and for the following reasons, it can be recognized that the transmission content of the instant transmission content was sent to the Plaintiff by the Deceased, but it is difficult to view that the rest of the transmission content was sent by the Plaintiff to the Deceased.

A person shall be appointed.

3) Even if all of the transmission details of this case were transmitted to the deceased, there is no evidence to acknowledge that each transaction agreement of this case under the terms and conditions of transaction alleged by the plaintiff was concluded, and there is no evidence to confirm whether the plaintiff intended to exchange the remaining transmission details other than the transmission content of this case with an encryption. Furthermore, as seen in the above paragraph (1) of the same Article, it is questionable whether the plaintiff asserted that, as seen in the above paragraph (1) of the same Article, the plaintiff asserted that the agreement was concluded to exchange with a crypted on June 11, 2018 on the basis of a single statement (Evidence No. 12-7 and Evidence No. 3-3 of the Evidence No. 12-7 of this case) transmitted with a crypted on July 11, 2018 and that the agreement was concluded to exchange with a crypted on July 11, 2018 with a crypted content.

Meanwhile, according to Gap evidence No. 18, the deceased had a conversation with the plaintiff on November 3, 2018 (hereinafter referred to as "the dialogue on November 3, 2018") with the following contents.

○ 망인: (날짜는 2018. 11. 3.으로 동일하므로 생략) 12:16경 “형님 그 모든 토큰 페깅가랑 한번 정리해서 보내주실 수 있나요?"○ 원고: 12:22경 “쿼크-31,533개 보너스 25프로, 썬더-547달러 보너스 25프로, 넥스-467달러 보너스 15프로, 아르고-440달러 한화 492,000원 보너스 40프로, 오아시스랩 -1 비트에 7,300개 보너스 5프로, 오리고 420 달러 보너스 20프로, 비고고 1이더 75,000개 보너스 15프로"○ 원고; 12:23경 “이렇게 하면 되니?"○ 망인: 12:23경 “어제 가격 잘못써서 지금 다시 쓰러가요 형님"○ 원고: 17:19경 “E아 계약서 다시 썼니?"○ 원고: 17:20경 “오늘 결제가 떨어지면 확정이라고 했거덩"○ 망인: 18:41경 “일단 결제 떨어졌구요 확정입니다 형님 넥스는 4,800원으로 합의 봤습니다"○ 망인: 18:41경 “쿼크-31,533개 보너스 25프로, 썬더-547달러 보너스 25프로, 아르고 440달러 한화 492,000원 보너스 40프로, 오아시스랩 1비트에 7,300개 보너스 5프로, 오리고-420달러 보너스 20피로, 비고고 1이더 75,000개 보너스 15프로 (원고가 같은 날 12:22경 말한 내용을 넥스 부분만 삭제하고 복사하여 전송한 것으로 보인다)○ 망인: 18:41경 “나머지는 이대로 확정지었으니 내용 전달 일단 하셔도 좋을 듯 합니다ㅎㅎ"

The Plaintiff appears to have asserted that such terms and conditions of transaction were based on the content of the cryptist conversation made on November 3, 2018. However, in light of the fact that the Plaintiff presented the cryptist exchange rate to the Deceased on November 3, 2018, and that the Deceased confirmed the remainder of the cryptist exchange rate, excluding transaction partners and KON, as presented by the Plaintiff, it appears that the conversation made on November 3, 2018 was a dialogue on how to determine the cryptist exchange rate in a return agreement made with the Chinese transaction partner, and it is difficult to view it as a dialogue between the Deceased and the Plaintiff on the terms and conditions of transaction.

4) According to the purport of the Plaintiff’s evidence No. 2 and the entire pleadings, the Plaintiff posted a letter of apology against investors following the death of the deceased.

From May 1 to May, I would like to see that I would like to see the situation of the ICO that was conducted through low time. I would like to see this article. I would like to introduce ‘X X E' through ‘Y', and supply ‘quota C' which has raised a high interest in the market at that time through the connection of the Chinese D, ‘Y'.After that, I would have received a good condition than D' which would have higher interest in investors.In addition, I would like to receive an early delivery of the quota contract, which would have been distributed from May 1 to Y, but will have been distributed to the 1st day, which would have been distributed to the 1st day, and would have been distributed to the 1st day, which would have been distributed more trust and trust of investors.However, I would have been distributed more than 1st day.

According to the above facts, the Plaintiff appears to have earned profits from the transaction with the Deceased during the period from May 2018 to September 2018. Thus, even if each of the instant transaction agreements was concluded even if each of the instant transaction agreements was concluded, the point at which the agreement was concluded is between May 12, 2018 and July 22, 2018, namely, the transaction with the Deceased, the possibility that each of the instant transaction agreements would have been normally implemented, and it is difficult to deem that the Deceased failed to perform his/her duty.

5) For the foregoing reasons, it is difficult to recognize that each of the instant transaction agreements was concluded, and even if each of the instant transaction agreements was concluded, it is difficult to see that the deceased did not perform his/her duty, and thus, the Plaintiff’s assertion on a different premise is without merit without further review.

B. Whether the deceased is liable for damages caused by a tort against the plaintiff

1) According to Gap evidence Nos. 21 through 24, Gap evidence Nos. 25-1, and Eul evidence Nos. 13-2, the following facts: (i) around 02:45 on May 12, 2018, immediately after the occurrence of the first transmission of the instant case, 740 Es. 80 Es. 80 Es. 7990 Es. 7990 Es. 90 Es. 7999 Es. 190 Es. 24 on the same day, it was transmitted to the Chinese Cding Exchange, a Chinese Cs. T. 64 Es. 24 on the same day (A. 595,200,000)’s U.S. account and transferred to a V bank account in the name of the deceased, and (iii) the details transferred from the remaining U.S. account immediately after the transmission of the instant case’s Es. 1.

However, in light of the fact that there is no evidence to confirm how the interest rates transmitted to T immediately after the occurrence of the first transmission content, how the interest rates transmitted to T have been traded, how the remaining transmission details have been traded, and ② there is a possibility that the obligation would have been performed normally in light of the point of conclusion when considering the fact that each transaction agreement of the instant case was concluded, as seen earlier, even if the contract of the instant case was concluded, the above facts alone are insufficient to recognize that the deceased received the interest rates with the intent to acquire by fraud in relation to the contents of each of the instant transmission, and there is no other evidence to acknowledge it.

2) As seen earlier, there is doubt as to whether the remaining details except for the transmission content of Nos. 1 and 12 are the content transmitted by the Plaintiff to the Deceased. According to the evidence No. 25-1, there is a document transferred from the Zbank A account of the Deceased to the Plaintiff on September 13, 2018, and the Plaintiff did not make any specific assertion on the circumstances. In light of the above circumstances, it is difficult to find out the possibility that the Plaintiff could not be the subject of fraud even if the Deceased received the cryption with the intent to acquire the crypt, even if the crypt. 29 was sent to the Plaintiff with the intention to obtain the crypt. 1 and 12, and it is difficult to recognize that the Plaintiff’s crypt. 1 and 140,000 won were forwarded to the Plaintiff from June 15, 2018 to September 2, 2018 (the Plaintiff’s crypt. 30,505).

3) As above, it is difficult to deem that there was an intention to acquire the deceased with respect to each transmission of this case as above, and it is difficult to exclude the possibility that the plaintiff could not have been subject to such fraud even if there was an intention to acquire the deceased. Therefore, it is difficult to deem that the tort against the plaintiff is constituted against the deceased. The plaintiff'

C. The deceased bears the duty to return interest pursuant to the return agreement of this case against the plaintiff

1) According to the contents of the conversation held on November 3, 2018, the Plaintiff and the Deceased appears to have discussed how to determine the crypted exchange rate in the return of crypted learning from a Chinese customer on November 3, 2018. ② According to the written evidence Nos. 19 and 29, the Plaintiff, the Deceased, and the Deceased, and the Deceased, AB, AC, AD, and AE (the four above persons were operated a room for their own joint purchase (hereinafter referred to as a “sypted section”) and the money received from the investors, which appears to be lower sales volume than the Plaintiff in the “joint purchase” with the money received from the investors. hereinafter referred to as “AB, etc.”), the Deceased created a group room related to the issue of return of crypted learning from a Chinese customer on November 28, 2018, and the Deceased made the following group rooms:

○ 2018. 11. 28. 11:13 경“이야기 잘 되고 있으니 한시름 놓으셔도 됩니다. 추가적인 협의내용 있으면 실시간으로 전달 드리겠습니다”○ 2018. 11. 29. 20:18경“우선 내일 40,000ETH 지급 확정 받았습니다. D에서 내일 저녁쯤 지급 가능하다고 하고 저도 내일 늦게까지 일정이 있어서 귀국 시간이 조금 늦어졌습니다. 한국은 토요일 오후 3시경 도착하며, 도착하는대로 배부 시작하면 오후 4시~5시경으로 분배 마무리 될 것으로 예상합니다. 베이징에서 바로 배부하는 것도 생각해보고 협의해봤으나 D에서 트랜젝션으로나마 노출되는 걸 꺼려하는 것 같아 제가 한국에 도착한 후 AF으로 간단하게 옮기는 작업 후 진행합니다. 어차피 여기 계신 리셀러분들이야 이제 D 정체에 대해서는 다들 아실테니 이더 분배(해) 나가면서 트랜젝션 내역 투명하게 공개할 것입니다. 그동안 너무 마음고생 많으셨습니다. 오늘 내일중으로 토요일 오후 4시-5시경 분배 공지하시고 분배량에 대해서 논의하시면 되겠습니다."○ 2018. 11. 29. 20:20경“제가 책임지겠습니다. 이번에 못 나가면 제 집 팔아서라도 분배합니다 ㅎㅎ○ 2018. 11. 30, 15:55 경"내일 3시 도착입니다 대표님. 저도 참석하도록 하겠습니다. 먼저 자리하고 계시면 최대한 빠르게 준비하고 가도록 하겠습니다.”○ 2018. 11. 30. 21:57 경AC이 2018. 11. 30. 21:28경 망인에게 투자자들로부터 욕설을 듣고 있으니 이더리움을 실제로 지급받았는지 알고 싶다는 취지로 말하자“이더 방금 받았습니다^^ 마음 놓으셔도 되겠습니다”(망인은 다음 날인 2018. 12. 1. 약속한 장소에 나타나지 않은 채 연락이 두절되었고, 원고는 수소문 끝에 2018. 12. 2. 망인의 자택을 찾아갔으나 망인은 이미 사망한 상태였다)

2) However, in light of the facts acknowledged earlier, and the following circumstances acknowledged by the purport of the statements and the entire arguments as stated in the evidence Nos. 4 and 19, it is difficult to view that the deceased entered into the instant return agreement with the Plaintiff around November 2018, and there is no evidence to acknowledge otherwise. The Plaintiff’s assertion on this part is without merit.

① On November 28, 2018, the Plaintiff told, unlike AB, etc. demanding the return of Ethical learning in the group or reading room as described in the foregoing paragraph (1), that “I think, on November 28, 2018, that, “I will see that the number of copies sent to the low-end address to be refunded by no later than the date of internal return will be in the body chill with their own low currency”.

② The Plaintiff, separate from the above group reading room, provided the following dialogues from November 29, 2018 to around 20:17, from around 20:09 on November 29, 2018.

○ 원고: “토요일날 도착하자마자 배부하겠다고"망인: “네 알겠습니다 형님ㅎㅎ"○ 원고: “공항도착 시간하고 알려주면서 걱정하지 말라고"○ 원고: “사람들이 질문 좀 할 거 같아. 질문하면 답변 좀 간단하게 해줘. 진짜 걱정하지 말라고,○ 원고: “토요일 도착하고 바로 배부 시작하겠다고"○ 원고: "형은 사람들 환불 주소 좀 받아둘게"○ 원고: "쿼크는 환불 배부를 어찌할지 형이 고민 좀 해볼게 쿼크는 제일 마지막에 환불하자 일요일날 하던가○ 원고: "한국 도착해서 의논하고"○ 망인: 망인이 같은 날 20:18경 공지한 내용과 동일한 내용을 보내면서 “이렇게 공지하겠습니다 형님 ^^

③ Considering the content of the conversation made on November 3, 2018, ①, and ② the content of the conversation as seen above, and the Plaintiff’s receipt of commission fees, etc., it is reasonable to deem that the Plaintiff was in a position to distribute and return the learning to AB, etc. as a person who received fees from AB, etc. and received the fees.

④ As seen in the above paragraph (a) above, it is difficult to ascertain whether some of the transmission details claimed by the Plaintiff overlap, and the remaining transmission details except the transmission details of the No. 1 and 12 of this case were transmitted to the deceased. It is difficult to see that each of the instant transaction terms and conditions as alleged by the Plaintiff was concluded, and it is difficult to avoid the possibility of being implemented even if each of the instant transaction terms and conditions was entered into, it is difficult to view that it was a situation in which the Deceased should return the interest rate to the Plaintiff at the time of November 2018.

D. Whether the deceased bears the duty to return unjust enrichment to the plaintiff

As seen in the above paragraph (a), it is difficult to confirm whether some of the transmission details claimed by the Plaintiff overlap with each other, and the remaining transmission details except the transmission details of the Nos. 1 and 12 of this case were transmitted to the deceased. It is difficult to exclude the possibility of performance even if each transaction agreement of this case exists, it is difficult to view that the deceased is liable to return unjust enrichment to the Plaintiff. The Plaintiff’s assertion on this part is without merit.

E. Sub-committee

As above, it is difficult to view that the deceased was liable to the Plaintiff at the time of the death, and on a different premise, the primary claim and conjunctive claim against the Defendants of the deceased against the Defendants is without merit.

4. Conclusion

Therefore, the plaintiff's primary and conjunctive claims against the defendants are without merit, and all of them are dismissed. It is so decided as per Disposition.

Judges

The presiding judge and the senior judge;

Judges Gui-Ma

Judges Southern도요

Note tin

1) The Defendants asserted that the person expressed in Gap’s 14, 16, and 18, the instant evidence was not the deceased and denied the authenticity of the evidence. First, the communications indicated in Gap’s 14-1, 2, and 16-1, 2, and 3 appears to be the communications connected with each other. The communications indicated in Gap’s 16-2 and 3 are the same as those indicated in Gap’s 11-3, except for the communications indicated in the “E” (no known) by the parties to the conversation, so Gap’s 14 and 16 evidence can be recognized as the authenticity of the evidence. In light of the content of the communications, Gap’s 17 evidence also appears to be the communications connected with one another, and thus, Gap’s 18-1, 2, and 3 appear to be the communications between the deceased and the Plaintiff’s 18-2 may not be deemed to be the content of the agreement with the Plaintiff and the deceased’s 18-2.

2) The details of Earbrid transmission (Evidence A No. 12-1) are indicated as 3.01 Earbrid, but they are so claimed by the Plaintiff.

심급 사건

서울중앙지방법원 2020.2.6.선고 2019가합556442

-서울고등법원 2020.11.10.선고 2020나2009198

유사 판례

-서울고등법원 2020.11.10. 선고 2020나2009198 판결

-서울고등법원 2020.11.10 2020나2009198

-서울북부지방법원 2020.04.23 2019가단109381

-수원지방법원 2020.09.10 2019가단509539

-서울중앙지방법원 2019.05.15 2018나57188