Alley Co., Ltd. (Law Firm Ombol, Attorney Kim Jong-soo, Counsel for the plaintiff-appellant)

Defendant 1 and three others (Law Firm Low, et al., Counsel for the defendant-appellant)

May 12, 2016

1. The Plaintiff:

A. Defendant 1 and Defendant 2 shall jointly pay 1,200,000,000 won with 5% interest per annum from June 14, 2012 to May 26, 2016, and 15% interest per annum from the next day to the date of full payment;

B. Defendant 1 shall pay 4,00,000 won with 5% interest per annum from January 28, 2012 to December 15, 2015, and 15% interest per annum from the next day to the date of full payment.

2. The plaintiff's remaining claims against the defendant 1 and 2 and the main and conjunctive claims against the defendant 3 and 4 are all dismissed.

3. Of the costs of lawsuit, 30% of the portion arising between the Plaintiff, Defendant 1 and Defendant 2 shall be borne by the Plaintiff, and 70% by the Defendants respectively, and the portion arising between the Plaintiff, Defendant 3 and Defendant 4 shall be borne by the Plaintiff.

4. Paragraph 1 can be provisionally executed.

Order No. 1-b. and the Plaintiff

Above all, the Defendants jointly pay 5% interest per annum on 1,900,000 won and 1,864,000,000 won from June 14, 2012 to the service date of a duplicate of the instant complaint, 20% per annum from such date to September 30, 2015; 36,000,000 won per annum from such date to the service date of a duplicate of the instant complaint; and 5% interest per annum for 36,00,000 won from such date to the date of complete payment; and 5% per annum from June 14, 2012 to the service date of a duplicate of the written application for modification of the instant claim; and 15% per annum from such date to the date of full payment; and

Preliminaryly, Defendant 3 shall pay 754,00,000 won and 1,110,000,000 won and 6% per annum from July 1, 2012 to the service date of a copy of the complaint of this case, 20% per annum from the next day to September 30, 2015, and 15% per annum from the next day to the day of full payment.

1. Basic facts

A. The Plaintiff Company was established on December 15, 2009 for the purpose of casino and other annexed facilities and operated the ○○ Hotel casino business (hereinafter “instant casino”). From February 8, 2010 to February 8, 2010, the Plaintiff Company was engaged in the ○○ hotel business (hereinafter “instant casino”).

B. Defendant 1 owned 25% of the shares of the Plaintiff Company as the vice-chairperson of the Plaintiff Company, and held 15% of the shares of the Plaintiff Company under the name of Defendant 3 (in-house director of the Plaintiff Company), which is its wife, and Defendant 2 held 15% of the shares of the Plaintiff Company under the name of Defendant 4 (in-house director of the Plaintiff Company), and held as the president of the Plaintiff Company, respectively, and three persons, who are the representative director of the Plaintiff Company,

C. On April 4, 2012, the Plaintiff Company entered into a contract to transfer and acquire all of the instant casino business rights and related assets to 15 billion won (hereinafter “instant contract”) (i.e., to pay the intermediate payment of KRW 2 billion on April 4, 2012; (ii) KRW 3 billion on April 30, 2012; and (iii) KRW 2 billion on May 31, 2012; and (iv) the remainder of KRW 9.5 billion on July 31, 2012 (hereinafter “instant contract”).

D. Accordingly, the non-party company issued to the Plaintiff company a down payment of KRW 50 million on April 5, 2012, and KRW 287 billion on May 8, 2012, respectively, with a cashier’s checks, and paid KRW 13 billion on May 8, 2012, KRW 542 million on June 12, 2012, KRW 658 billion on June 3, 2012, and KRW 400 million on June 13, 2012, respectively, and paid KRW 60 million on June 4, 2012 (in the case of an account transfer, KRW 30 million on June 11, 2012, KRW 200 million on June 3, 2012, KRW 300 million on June 4, 2012, and Plaintiff 200 million on June 21, 2012 (hereinafter “the instant account”).

E. Meanwhile, on June 30, 2012, with respect to the receipt of the instant down payment of KRW 3.5 billion, the Plaintiff Company accounted for KRW 1 billion in short-term loans of KRW 90 billion, Defendant 3 short-term loans of KRW 750 million, and Defendant 4 short-term loans of KRW 1110 million.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2, 6, and 7, the purport of the whole pleadings

2. Judgment on the claim of the money related to the down payment of this case

A. The parties' assertion

(1) The Plaintiff conspired to use the down payment of KRW 1.9 billion among the down payment of the instant case 3.5 billion paid by the non-party company at will, and thus, sought payment of KRW 1.9 billion and damages for delay to the Plaintiff jointly with the Defendants, who are joint tortfeasors, and subsequently, sought payment of KRW 1.9 billion and damages for delay to the Plaintiff. In addition, if the Plaintiff leased the said Defendants to Defendant 3 and Defendant 4, then the Plaintiff would be entitled to the short-term loan, namely, the amount treated as the short-term loan, i.e., the amount for Defendant 3, and KRW 1.1 billion against Defendant 4, and damages for delay.

(2) As to this, the Defendants asserted that the Nonparty, the actual managers of the Plaintiff Company, Defendant 1, and Defendant 2 used the instant down payment in accordance with their respective necessary uses, as it had been operated by agreement and resolution between the said three parties without holding a general meeting of shareholders. On December 2012, 2012, KRW 2.95 billion, excluding the cost of KRW 550 million out of the down payment of KRW 3.5 billion from the Plaintiff Company, shall be deemed to have been borrowed respectively by the Nonparty, Defendant 3, and Defendant 4. The Defendants shall be liable for the obligations to be borne by the Plaintiff Company according to the actual share ratio, and the remaining amount shall be attributed to each individual’s income according to their respective shares ratio.

B. Determination

(1) Facts of recognition

In full view of the facts as indicated in Gap evidence 7, 8, and 10, and the purport of the entire pleadings, the non-party and defendant 1 and 2 jointly operated Donel Co., Ltd. in addition to the casino of this case, which is linked to Jeju. The non-party, defendant 1, and defendant 2 entered into the contract of this case that sells all the pertinent casino business rights and related property, which are the whole property of the plaintiff company, and used the down payment amount of KRW 3.5 billion as operating funds of Donel Co., Ltd., with the payment of KRW 3.5 billion, the non-party and the defendant 1 and the defendant 2 used them as personal liabilities and expenses. The non-party and the non-party 1 and the defendant 2 were prosecuted for the above violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (the defendant 1 and the defendant 2 were indicted for occupational embezzlement of KRW 200,000,000,000,000).

(2) The cited part

According to the above facts, since Defendant 1 and Defendant 2 used 1.2 billion won of the down payment of this case at will and embezzled it, they jointly as joint tortfeasor, they are liable to pay damages for delay calculated at each rate of 15% per annum under the Civil Act from June 14, 2012 to May 26, 2016, which is reasonable to dispute as to the existence and scope of the above Defendants’ performance obligation, as the joint tortfeasor, as to the existence of the performance obligation and its scope after the date of the joint tort.

As to this, the Defendants asserted that, first of all, the debt of the Plaintiff Company shall be responsible for the disposal of the down payment of this case to the Nonparty, the actual manager of the Plaintiff Company, and to Defendant 1 and Defendant 23, but the remaining amount shall be attributed to each individual income according to their respective shares ratio, so the above amount shall be allocated to the said Defendants, as the Defendants received a share of KRW 1.2 billion. However, it is insufficient to recognize that the above agreement has been concluded by only the descriptions in subparagraph 5-3, 4, and 5 of the evidence No. 5-3, and there is no other evidence to prove that there was no other evidence to prove that such agreement was valid ( even if the above agreement was concluded, there is no evidence to prove that there was such a resolution).

In addition, the Defendants asserted to the effect that the above Defendants should return a certain amount of money from the Plaintiff Company, rather than by specifying the actual amount used by the Nonparty and Defendant 1 and Defendant 2 due to the liquidation of the business relationship after disposing of the Plaintiff Company’s property, and the settlement of accounts according to the equity ratio. However, there is no evidence to acknowledge the Defendants’ assertion, and there is no other evidence to acknowledge it. Accordingly, the Defendants’ assertion cannot be accepted.

(3) The dismissed part

㈎ 원고는 주위적으로, 피고들이 공동하여 19억 원을 횡령하였다는 취지로 주장하나, 갑 제7호증의 기재만으로는 피고 1, 피고 2가 앞서 인정한 12억 원 외에 추가로 6억 원을 임의로 소비하였다고 인정하기에 부족하고, 달리 아무런 증거가 없다. 또한, 피고 1의 처 피고 3, 피고 2의 처 피고 4가 원고 회사의 주주로서 각 사내이사로 등재되어 있는 사실은 앞서 본 바와 같으나, 소외인, 피고 1, 피고 2 3인이 투자하여 원고 회사를 실질적으로 공동으로 경영한 사정과 관련 형사 사건에서 이 사건 계약금 중 12억 원에 대하여만 피고 1, 피고 2가 임의로 소비하였음이 인정된 사정 또한 앞서 본 바와 같으므로, 피고 3, 피고 4가 원고 회사의 주주 및 사내이사로 등재되어 있다는 사정만으로 피고 3, 피고 4가 피고 1, 피고 2와 공모하여 이 사건 계약금 중 일부를 횡령하는 불법행위를 저질렀다고 인정하기 부족하고, 달리 이를 인정할 만한 증거가 없다.

㈏ 원고는 피고 3, 피고 4에 대하여 예비적으로 대여금의 반환을 구한다고 주장하나, 갑 제4호증의 기재만으로는 위 피고들이 원고로부터 원고 주장의 금원을 차용하였다고 인정하기에 부족하고, 달리 아무런 증거가 없다(오히려 앞서 인정한 바와 같이 원고 회사는 이 사건 계약금 35억 원 수령과 관련하여 소외인, 피고 1, 피고 2가 임의로 동업 자금, 개인 채무 변제 등으로 사용하도록 하고서 2012. 6. 30.자로 소외인 단기대여금 10억 9,000만 원, 피고 3 단기대여금 7억 5,000만 원, 피고 4 단기대여금 11억 1,000만 원으로 일방적인 회계처리를 하였을 뿐이다).

㈐ 따라서, 이 사건 계약금과 관련한 원고의 피고 1, 피고 2에 대한 12억 원 및 그 지연손해금을 초과한 금원 청구 및 피고 3, 피고 4에 대한 주위적, 예비적 청구는 모두 이유 없다.

3. Determination on the claim for money related to the lease deposit against Defendant 1

In light of the purport of the argument in Gap evidence No. 9, Defendant 1, on the plaintiff's company's account in relation to the plaintiff company's business, shall be liable to pay the plaintiff (name 2 omitted) KRW 4 million in lease deposit, KRW 9.2 million in annual rent, and KRW 4 million in lease deposit, KRW 9.2 million in annual rent, and KRW 4 million in annual rent from January 28, 2011 to January 27, 2012, and received KRW 4 million in lease deposit after the expiration of the above contract period, but it has not been returned to the plaintiff company. Thus, Defendant 1 is obligated to pay the plaintiff the lease deposit amount of KRW 4 million in annual rent from January 28, 201 to December 15, 2015, the following day after the expiration of the contract period of the contract period of the plaintiff company's business to the plaintiff company with the total amount of KRW 4 million in lease deposit, KRW 4 million in annual rent of 15.5% in each of this case.

4. Conclusion

Therefore, the plaintiff's claim against the defendant 1 and 2 shall be accepted within the scope of the above recognition, and each remaining claim shall be dismissed as it is without merit. The main claim against the defendant 3 and 4 shall be dismissed as it is without merit. It is so decided as per Disposition.

Judges Kim Jae-ok (Presiding Judge)