Plaintiff (Law Firm Green, Attorneys Lee Jong-il et al., Counsel for the plaintiff-appellant)

Defendant (Attorney Seo-won, Counsel for the defendant-appellant)

March 15, 2013

Seoul Eastern District Court Decision 2011Gahap19933 Decided May 30, 2012

1. The part of the judgment of the first instance against the defendant shall be revoked.

2. The plaintiff's claim corresponding to the above revoked part is dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

With respect to the Plaintiff KRW 135,126,710 and KRW 64,524,831 among them, the Defendant shall pay 16% per annum from October 3, 2000 to August 31, 2001, KRW 21% per annum from the next day to the date of full payment, KRW 20,601,879 per annum from October 24, 2000 to November 2, 2002, KRW 21% per annum from the next day to the date of full payment, KRW 50,00,00 per annum from October 5, 2005 to the date of full payment, and KRW 20% per annum from the next day to the date of full payment, and KRW 20% per annum from each day to the date of full payment.

2. Purport of appeal

The same shall apply to the order.

1. Facts of recognition;

A. The Plaintiff, who is qualified as a certified tax accountant, operated a tax accountant office with the Defendant who is not qualified as a certified tax accountant, in a partnership business from November 1, 1991 to October 1, 2000, part of 25 square meters out of 164.33 square meters of the third floor of the Gu-si ( Address 1 omitted) building 164.33 square meters (the name of the certified tax accountant office is determined in the name of the Plaintiff, and the Defendant served as the head of office at

B. On October 1, 1992, the defendant completed the registration of ownership transfer on the ground of sale as of 164.33/1,04 corresponding to the third floor of the above building on September 24, 1992.

C. On October 10, 200, the Plaintiff and the Defendant drafted a letter of agreed implementation (hereinafter “instant letter of agreed implementation”) with the following contents in order to liquidate the partnership relationship with the said certified tax accountant office:

The plaintiff and the defendant, which are included in the main text, have the responsibility to perform their duties by separating a tax accountant office when preparing a letter of agreement performance as follows. 1. The defendant's performance items are as follows: ① 60,000,000 won of loan under the name of the plaintiff in the name of the mutual savings and finance company and 24,000,000 won of cash payment; ② 50,000,000 won of cash payment; ④ Nonparty 1's retirement allowance 4,440,30 won of cash payment; ⑤ The defendant's transfer of entry from the office to the office of the defendant to the office of the defendant to the office of the defendant to the office of the defendant to the 9th month of signing (the office of the defendant is without the ○○ Industrial Co., Ltd.) and the defendant's transfer of deposit money to the defendant to the 15,000,000 won of cash deposit and the remaining amount of deposit to the defendant to the 10,000,000 won.

D. Pursuant to the part of the Defendant’s performance in the letter of commitment to the instant agreement, the following documents were prepared between the original and the Defendant:

1) On October 3, 200, the Plaintiff lent KRW 64,524,831 to the Defendant, among which 4,524,831 won was paid on October 24, 200, and the remainder of KRW 60,000,000 shall be paid on August 31, 200, and the interest rate shall be 16% per annum (payment on August 3, 200), and the interest rate on principal or interest shall be 21% per annum (hereinafter “the first loan”).

2) On October 3, 200, the Plaintiff lent KRW 20,601,879 to the Defendant. Of them, KRW 3,935,205 to the Defendant on October 24, 200, KRW 666,690 to the repayment on November 3, 200, KRW 666,69,984 to the remainder KRW 66,666 to the payment on December 3, 200 to the third day each month from December 3, 200 to November 3, 202; KRW 16% per annum (payment on October 3, 200); and KRW 21% per annum to the interest rate on principal or interest (hereinafter “second lending”) was set out by a notary public on October 4, 2007 with the content of a notarial deed as 21% per annum.

3) On October 4, 200, on the third floor of the above building, the lease agreement was concluded from the Defendant that the part of 25 square meters among the third floor of the above building was set at 50,000,000,000,000,000,000, and on October 4, 2000, the lease agreement was concluded that the Plaintiff leased the previous debt owed by the Defendant to the Plaintiff as the above lease deposit.

(e) Progress, etc. after the preparation of a first and second rental contract and lease contract;

1) On April 23, 2002, with respect to the portion of 164.33/1,047.09/1,00 of the above third floor of the building owned by the Defendant, the registration of ownership transfer was completed under the name of Nonparty 2 on April 12, 2002 due to a successful bid as a result of voluntary auction on April 12, 2002. Of the above shares owned by Nonparty 2, the registration of ownership transfer was completed on July 26, 2002 with respect to the portion of 82.165/1,047.09/1,000 corresponding to the 25th floor of the above third floor of the building.

2) On April 11, 2001, the Plaintiff received a provisional attachment order of real estate amounting to KRW 30,000,000 on the land at Namyang-si ( Address 2 omitted) which was owned by the Defendant at the time of Seoul District Court’s 2001Kadan3148 on April 11, 201. However, the said provisional attachment order of real estate was issued on April 13, 2001, on the ground that the Plaintiff filed a lawsuit on the merits that the said provisional attachment registration was completed on April 13, 201, and the said provisional attachment was filed on November 11, 201 after the lapse of 10 years from the date of the said provisional attachment registration, pursuant to Article 706(2) of the former Civil Procedure Act (wholly amended by Act No. 6626, Nov. 26, 2002).

3) On May 10, 2001, the Plaintiff received a claim amounting to 1/2 of the amount equivalent to the Defendant’s third-party obligor’s wage and retirement allowance, excluding each tax and public tax, from the Defendant’s third-party obligor’s wage and retirement allowance amounting to 60,000,000 won, and received a collection order.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 3, 5, 6, 10, Eul evidence Nos. 2 through 4, 6, 12, and the purport of the whole pleadings

2. The plaintiff's assertion

The part concerning the defendant's performance of the agreement in this case, in particular, the part concerning the first and second lending contract is valid as unrelated to the liquidation of the partnership relationship with the tax accountant office. Therefore, the defendant is obliged to pay the plaintiff the first and second lending, the deposit for lease, and the interest or delay damages for the first and second lending contract in accordance with the part concerning the defendant's performance of the contract in this case.

3. Determination

(a)The former Certified Tax Accountant Act (amended by Act No. 6080, Dec. 31, 199); Article 12-3 provides that "no certified tax accountant shall allow any third person to provide tax agent services using his name or trade name, or lend his certificate of qualification or registration to any third person;" Article 20 (1) provides that "no person other than those who have registered under Article 6 shall provide tax agent services unless he provides for services under Article 3 of the former Certified Tax Accountant Act; Provided, That this provision shall not apply to cases where a person who provides tax agent services without qualifications for not more than three years or a fine not exceeding five million won for violation of Article 22 (1) 1 of the former Certified Tax Accountant Act provides that "Any person who violates the provisions of Article 12-3 shall be punished by imprisonment with prison labor for not more than one year or by a fine not exceeding three million won for violating the provisions of Article 22-2 (1) of the former Certified Tax Accountant Act and any person who provides the qualifications of tax agent services for not more than two years ago."

B. There is no evidence to acknowledge that the part of the Defendant’s implementation in the letter of agreement between the original and the Defendant is unrelated to the liquidation of partnership business relations between the tax accountant office and the Defendant. Rather, the fact that the original and the Defendant prepared the part of the Defendant’s implementation in the letter of agreement for the liquidation of partnership business relations in the tax accountant office, i.e., the settlement of profits and losses premised on the validity of partnership business agreements in the tax accountant office, as seen earlier. Therefore, it is reasonable to view that the part of the Defendant’s implementation in the letter of agreement made between the original and the Defendant for the liquidation of partnership business relations in the tax accountant office, which is a mandatory law, is invalid in violation of Articles 12-3 and 20(

C. Therefore, the Plaintiff’s claim seeking the payment of loans Nos. 1 and 2 and lease deposit money according to the Defendant’s performance part among the letter of commitment performance of this case on the premise that the Defendant’s performance part among the letter of commitment performance of this case is valid is without merit.

4. Conclusion

Therefore, the plaintiff's claim of this case is dismissed due to the lack of reason, and since the part against the defendant among the judgment of the court of first instance which partially different conclusions is unfair, the defendant's appeal is accepted, and the plaintiff's claim of this case is revoked and dismissed.

Judges Kim Jong-tae (Presiding Judge)

(1) The Plaintiff: (a) led to the confession of the fact that the Defendant prepared the part regarding the Defendant’s implementation of the instant agreement in order to liquidate the partnership relationship with the Defendant; (b) on the second day of pleading in the trial of the first instance (see, e.g., the briefs dated December 11, 2012); (c) however, there is no evidence to prove that the said confession was contrary to the truth and due to mistake; and (d) there is no effect of revocation of confession.

2) The Plaintiff’s above assertion is a matter that does not dispute, such as the Defendant’s failure to raise an objection.

Note 3) The phrase “a fact that a lawsuit has not been brought on the merits is recognized” as stated in the reasons for the evidence No. 12 (Revocation of Provisional Seizure) appears to be a clerical error.

Note 4) As set forth in the foregoing Section 2.