(영문) 광주지방법원 2018.1.18.선고 2016가합54317 판결

The defendant shall pay to the plaintiff 510,000,000 won and 500,000,000 won among them, 50,000 won with 5% interest per annum from March 23, 2016 to the service date of a copy of each complaint in this case from March 27, 2016 to the service date of a copy of each complaint in this case, and 15% interest per annum from the next day to the day of complete payment.

Reasons

1. Basic facts

A. The Plaintiff is the father and interest of D who was the representative director of C Co., Ltd. (hereinafter referred to as “C”) for the purpose of wholesale business from May 31, 1999 to November 23, 2015, and the head of W, who was actually operating C from November 24, 2015 to November 24, 2015 and died on March 21, 2016 (hereinafter referred to as “the network”). The Defendant is a representative director of F Co., Ltd., and was engaged in transactions, such as granting a discount mark in the name of C, as the representative director of C.

B. The Defendant visited the Plaintiff’s office on March 23, 2016, which is the date of the deceased’s birth, around 15:00, and demanded the settlement of the check number ( check number H and hereinafter referred to as “the check number”) indicated in the 500 million won face value, G Co., Ltd., the place of payment, the date of issuance, March 23, 2016, and the issuer C (State) D. Around March 23, 2016. On March 23, 2016, the Plaintiff obtained a loan of KRW 50 million from the I Association and paid KRW 500 million to the Defendant through the employee J on the same day.

[Reasons for Recognition] Facts without dispute, entry of Gap evidence 1 through 7 (including the number of each branch; hereinafter the same shall apply) and the purport of the whole pleadings

2. The plaintiff's assertion

A. The Defendant is obligated to pay the Plaintiff damages based on the tort for the following reasons, including KRW 500 million per share of this case paid by the Plaintiff, KRW 10 million for consolation money for mental damage suffered by the Plaintiff, KRW 510 million in total, and delay damages.

1) The Defendant informed the Plaintiff of the harm and injury that the Plaintiff’s son, recorded as the representative director of the issuer’s representative director, may be subject to criminal punishment in the event that the Plaintiff did not pay the check of the number of units of this case to the Plaintiff, and conspired with the Plaintiff by receiving KRW 500 million from the Plaintiff.

2) When the Plaintiff repaid KRW 500 million from the Defendant, the Plaintiff heard that the Plaintiff would return the instant check and the instant check and the Defendant’s vehicle, as well as that the Plaintiff’s notarial deed of promissory note amounting to KRW 500 million in face value issued by K with the Plaintiff’s her father’s son’s son’s son’s son’s son’s son. The Plaintiff borrowed KRW 500 million from the association and paid it to the Defendant, and the employees J instructed the Defendant to return the said promissory note that the said promissory note and the Defendant’s notarial deed kept on the instant check and the Defendant’s vehicle were returned to the Defendant. However, the J had the Defendant returned only the instant check since the Defendant would return the said promissory note as the time would have late, and the Defendant thereafter refused to return the said promissory note to the Plaintiff.

3) On March 27, 2016, the Defendant damaged the Plaintiff’s honor by speaking the Plaintiff to the effect that the Plaintiff had committed suicide on the part of the Plaintiff’s Easted L and M, etc., which are the Plaintiff’s birth.

B. Selectively, the check of this case is invalid as it was issued at will and forged by the deceased, who was not delegated by D, the representative director of D. Thus, the Plaintiff, despite the absence of D’s duty to pay the check of this case, paid it to the Defendant due to mistake. As such, the Plaintiff claimed for the payment of KRW 50 million paid by the Plaintiff as unjust enrichment under Article 745(1) of the Civil Act, and legal interest and delay damages.

3. Judgment on the claim for damages caused by the tort

A. Determination as to tort liability due to extortion

In order for a declaration of harm to be a declaration of harm by duress, the other party’s threat of harm and fear of Mamalao should be made, and the expression of intent should be made. In order to make a threat of harm and injury illegal, in light of the transaction concept and overall circumstances at the time of the act of coercion, where the profit pursued by the threat of harm and injury is not justifiable, where the content of harm and injury notified to the other party as a means of coercion violates the legal order, or where the notice of harm and injury is inappropriate as a means to achieve the profit pursued by the threat of harm and injury in light of the transaction concept (see, e.g., Supreme Court Decision 2009Da72643, Feb. 11,

In light of the above legal principles, the statement of No. 11 alone is insufficient to acknowledge the fact that the defendant stated that D may be detained if the defendant fails to pay the plaintiff the share sheet of this case. The statement of No. 6 and the witness J's testimony, which seems to conform to the plaintiff's argument, are difficult to believe, and there is no other evidence to acknowledge them. Even if the defendant made the above statement to the plaintiff, the defendant merely expressed his opinion that D may be punished under the Illegal Check Control Act in the event the share sheet of this case issued under the name of the representative director registered as C on the registry is insolvent. Thus, it is insufficient to acknowledge that such act is in violation of legal order, or that it is inappropriate to pay the share sheet, that is, as a means for the payment of the share sheet, there is no evidence to acknowledge it otherwise. Therefore, the plaintiff's above assertion is without merit.

B. Determination on the liability of tort by fraud

1) Comprehensively taking account of the overall purport of the statements and arguments set forth in Gap evidence Nos. 5 and 8 as seen earlier, the deceased, who actually operated Eul, issued and discounted the number of units of the instant case as indicated on October 23, 2015 to the defendant on March 23, 2016, and the plaintiff paid KRW 500 million to the defendant on March 23, 2016.

2) However, in light of the following facts acknowledged by considering the overall purport of evidence Nos. 18, 18, 2, 7, and 9 and the overall purport of arguments, it is insufficient to recognize that the Defendant, upon receiving KRW 500 million from the Plaintiff, agreed to return the instant check number and the instant promissory note No. 6 together with the Plaintiff. The witness testimony and the witness testimony are closely related to the Plaintiff’s newness as an employee of “0, a personal company operated by the J, with the intention of the Plaintiff for a long period of time. In light of the following facts, it is difficult for the Plaintiff and the Defendant to easily understand that they continued to sit in the instant check number when classifying the talk about the settlement of the instant check number, and there is no evidence to acknowledge them otherwise. Therefore, there is no reason for the Plaintiff’s assertion.

① The Plaintiff established C and operated the business of processing and selling the instant Promissory Notes with D and the deceased for a considerable period of time. If the Plaintiff refused the Defendant’s request to pay the check money, but paid the check money, the Plaintiff would only be deemed to have paid KRW 500 million to the Defendant upon receipt of the Defendant’s proposal that the Defendant would be exempted from the obligation on the Promissory Notes. However, in paying a large amount of KRW 500 million, the Defendant’s oral statement that the instant Promissory Notes are kept in the instant Promissory Notes in the vehicle without the original intent to pay is not confirmed as to the instant Promissory Notes, and it is difficult to obtain such assertion easily.

② The Defendant held C with respect to the instant check money claim amounting to KRW 500 million, and K with respect to the Promissory Notes amounting to KRW 500 million, and with respect to the Promissory Notes amounting to KRW 500 million in total, as alleged by the Plaintiff, the Defendant appears to have been able to have been unable to recover the claim due to the failure of the per share sheet issued by C and the suicide of the deceased, who is the representative director, due to the circumstance that the Defendant received only KRW 500 million from the Plaintiff and received the full repayment of the claim amounting to KRW 1 billion in total, as alleged by the Plaintiff. However, under the circumstance that the remaining assets of C are not identified to a certain degree, it is difficult to obtain it from the Defendant immediately before the suicide of the deceased, and it is difficult to find any other reasonable ground.

③ The Plaintiff did not receive a refund of the instant promissory note notarial deed even when the Plaintiff received the instant check of shares from the Defendant.

④ On May 16, 2016, the Plaintiff filed a complaint with the Defendant by fraud as alleged. However, the Prosecutor’s Office of the Gwangju District Prosecutors’ Office rendered a decision on December 28, 2016 that the Defendant was not guilty on the ground of insufficient evidence as to the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) against the Defendant. While the Plaintiff filed a complaint, the Prosecutor’s Office of Gwangju High Prosecutors’ Office dismissed it on June 30, 2017.

Defamation, which is a tort under the Civil Act, refers to an act of infringing upon an objective evaluation received from a society on a human value, such as a person’s character, virtue, reputation, and credit, and so long as such objective evaluation is infringed, it may be established by an expression of opinion or comment. However, a mere expression of opinion alone cannot be deemed as impeding the other party’s social evaluation. Thus, in the case of pure opinion or comment that is not premised on a statement of fact, liability for damages arising from defamation is not established. On the other hand, a statement of fact does not necessarily be limited to cases where a fact is directly expressed, but it is sufficient to recognize the existence of such fact in light of the preceding purport of the expression, even in cases of indirect or round-up expressions, and to the extent that it is likely to infringe on a specific person’s social value or assessment (see Supreme Court Decision 9Da6203, Jul. 28, 200).

In light of the above legal principles, although the fact that the defendant met L and M does not have any dispute between the parties, the Gwangju District Prosecutors' Office rendered a decision that the defendant was not guilty on the ground of the lack of evidence as to defamation against the defendant under punishment No. 25249 on December 28, 2016, taking into account the overall purport of the statements and arguments in the evidence No. 7 and No. 9, and the purport of the whole arguments in the evidence No. 7 and No. 9, the Gwangju High Prosecutors' Office dismissed the plaintiff's appeal on June 30, 2017. In light of the above facts recognized earlier and the statement in evidence No. 11 alone, it is insufficient to acknowledge the fact that the defendant killed L et al. as the plaintiff's 's 's 's 'the deceased', the plaintiff's 's 'the plaintiff's 's 'the plaintiff's 's 's 's 'the plaintiff's 's 's 's '.

Even if the defendant made a statement to the effect that the plaintiff died of L/M as alleged by the plaintiff, it is merely a statement of the defendant's idea about the cause of suicide of the deceased, and it cannot be viewed as a statement of specific facts. Thus, the plaintiff's assertion about this is without merit even if it is any reason.

D. Sub-determination

Therefore, the plaintiff's claim for damages due to illegal acts against the defendant is without merit.

4. Determination as to the claim for return of unjust enrichment

A. According to Article 745(1) of the Civil Act, in the event that a person other than an obligor has discharged another person’s obligation by mistake, if the obligee has lost his claim by prescription, the obligee may not demand the return thereof. The above provision limits the obligee’s right to claim the return of unjust enrichment that the obligee has discharged by mistake on behalf of the obligee, in good faith, if the obligee has discharged the obligation of another person by mistake and mistake, and the obligee has in good faith destroyed evidentiary documents or has lost his claim due to the completion of prescription (see Supreme Court Decision 91Da17917, Feb. 14, 192). In light of the above legal principle, the Plaintiff paid the check amount by intention of subrogation with the obligee knowing that the obligation of this case was not discharged to the Defendant with his own obligation, and the Defendant also received the obligation of Article 745 of the Civil Act with the knowledge that it was not the Plaintiff’s obligation, and thus, the Plaintiff’s assertion that it constitutes a non-payment of debt under Article 745 of the Civil Act is without merit.

B. Meanwhile, in full view of the purport of the entire pleadings as a result of the order to submit financial transaction information to G corporation, the court held that C opened a current account to G corporation as its agent on June 2009, and that C’s official seal affixed to C, which was submitted to G, is the same as C’s official seal affixed on the name plate loan certificate submitted to G. According to the above facts of recognition. According to the above facts of recognition, the instant current number of shares shall be deemed to have been lawfully issued by the deceased delegated by D, who is the representative director of C, and the Plaintiff’s payment of the current number of shares does not constitute unjust enrichment relationship between the original and the Defendant by lawful payment by a third party. Thus, the first Plaintiff’s assertion on a different premise is without merit.

5. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit. It is so decided as per Disposition.