2019Na52883 Preemptives

A Stock Company

B

Law Firm Changcheon, Counsel for the defendant-appellant

[Defendant-Appellant]

Seoul Central District Court Decision 2016Da5127537 Decided August 21, 2019

may 22, 2020

July 24, 2020

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

[Claim]

The defendant shall pay to the plaintiff 69,44,237 won and 6,676,611 won with 8.04% interest per annum from January 24, 2019 to the date of full payment.

【Purpose of Appeal】

The part against the defendant in the judgment of the court of first instance shall be revoked, and the plaintiff's claim corresponding to the revocation shall be dismissed.

1. Quotation of judgment of the first instance;

The reasoning of this court's judgment is as follows, and it is identical to the reasoning of the judgment of the court of first instance except for the following additional or modified portions, so it is cited by applying the main sentence of Article 420 of the Civil Procedure

○ The following shall be added to the Decision 6(2)-A(2) of the first instance court:

“(3) The Defendant asserts to the effect that since the payment of the dividend at issue was delayed without the Defendant’s intention or negligence during the period from October 14, 2014 when the dividend in question was deposited to November 11, 2019 when the Plaintiff was able to recover the dividend, the Defendant cannot pay damages for the period of delay. The Defendant asserts to the effect that damages for delay can not be paid for the period of delay since the performance of the obligation was delayed without the Defendant’s intention or negligence. In the damages claim due to nonperformance, if the obligor did not perform the obligation that became final and conclusive in the damages claim due to nonperformance, it shall be deemed unlawful. However, if the obligor did not act intentionally or negligently against the obligor, the obligor is not liable for damages. The commencement of the auction procedure at issue, which was the premise of the lawsuit of demurrer to the distribution in this case, was based on the Defendant’s failure to pay the principal and interest of the loan in this case, and therefore, it cannot be deemed that there was no Defendant’s intention or negligence. However

○ The fact that there is no de facto "hh" under the 8th judgment of the first instance court is added as follows:

(6) Meanwhile, even if the Defendant had an objection to a lawsuit of demurrer against a distribution and the Defendant had an objection to the time the repayment of the deposited dividend takes effect, such part would have been resolved after the Supreme Court Decision rendered earlier. 6) Meanwhile, the Plaintiff and the Defendant appear to have been within the scope of the interest rate applied at the time of loan contract in a commercial bank. 6 The Plaintiff voluntarily filed a claim by applying 8.04% per annum, which is the lower rate than 10% per annum (i.e., the fixed interest rate operated by the Plaintiff around January 23, 2019, according to the statement in the evidence No. 8. 8.04% per annum) in lieu of the highest rate of delay damages for a certain period.

From the 8th bottom of the judgment of the first instance court, the part in which the plaintiff was the one who was the one who was the late payment compensation rate for the delay of the period from the 4th to the third shall be referred to as "the plaintiff seeks to voluntarily reduce the period thereafter."

2. Conclusion

Thus, the plaintiff's claim shall be accepted within the scope of the above recognition, and the remaining claims shall be dismissed as it is without merit. The judgment of the court of first instance is just in conclusion, and the defendant's appeal is dismissed as it is without merit.

Judges Kim Jong-min

Judges Kim Byung-su

Judges Lee In-bok