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1. The Defendant’s KRW 40,370,00 for the Plaintiff and KRW 5% per annum from October 6, 2019 to November 17, 2020 for this.
Reasons
1. Facts of recognition;
A. The Plaintiff is a person who engages in the wholesale and retail business of precious metals with the trade name “E” at the D shop in Jongno-gu Seoul Metropolitan Government, and the Defendant is a person who engages in the wholesale and retail business of precious metals with the trade name “I” at the H shop in Jung-gu Seoul Metropolitan Government.
B. On September 2016, the Plaintiff purchased Damond (188.1ct, hereinafter “the instant Damond”) equivalent to KRW 59,270,000 in total from the Defendant’s Defendant for the first time, and the instant Damond purchased by the Plaintiff was identified as not a almond.
C. Accordingly, the Plaintiff filed a complaint with an investigative agency on the ground that the Defendant had known that the instant multimond was a fake but sold the instant multimond to the Plaintiff as if it were a true good.
However, the investigation agency conducted a non-prosecution disposition on March 8, 2017 on the ground that there is insufficient evidence to prove that the Defendant, as a result of the investigation of the original Defendant, sold the Defendant with false multimond to the Plaintiff from the beginning.
[Ground of recognition] Facts without dispute, Gap evidence No. 2, Eul evidence No. 1 (including virtual number), the purport of the whole pleadings
2. Determination
A. 1) Determination as to the primary cause of claim 1) In full view of the above facts of recognition as to the establishment of tort and the purport of the arguments in Gap evidence Nos. 1, 3, and 4, the plaintiff and the defendant entered into a sales contract on the premise that the Damond of this case was a good, and it can be recognized that the Damond of this case offered to the plaintiff by the defendant was a fake. Since the defendant sold the Damond, not a good, and thereby causing damage to the plaintiff, it is recognized as tort by negligence. 2) The plaintiff is entitled to the amount equivalent to the purchase price of the Damond of this case due to the above tort committed by the defendant within the scope of damages.