In a case where a creditor claims for foreign currency claims by converting them into Korean currency (i.e., the time of foreign exchange at the time of closing argument in the court of fact-finding), and in a case where only the debtor appeals and appeals against the judgment of performance in the court of first instance, whether the court shall re-inform the amount of claims based on the foreign exchange rate

Where an obligee claims foreign currency claims which are monetary claims designated in foreign currency into Korean currency by exercising the right to substitute payment, and the court orders the obligor to perform the claims, the court shall set the base time of conversion of foreign currency at the time of closing argument of the fact-finding court which is most close to the obligor’s performance into Korean currency at the time of closing argument of the fact-finding court. In a case where only the obligor appeals and appeals against the performance judgment of the first instance court, the appellate court belongs to the appellate court, and even if the obligor’s allegation is deemed grounds for appeal or is groundless in the course of the trial, the court shall re-enter the amount of claims based on the foreign exchange rate at the time of closing argument of the appellate court, and

Article 378 of the Civil Act, Article 409 of the Civil Procedure Act

Supreme Court en banc Decision 90Da2147 delivered on March 12, 1991 (Gong1991, 1161)

Plaintiff Co., Ltd. (Attorneys Lee Yong-soo et al., Counsel for the plaintiff-appellant)

Defendant Co., Ltd. (Law Firm Gyeong & Yang, Attorneys Kim Won-il et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2005Na108935 decided September 20, 2006

The part of the judgment of the court below against the defendant, which exceeds the amount of 401,115,750 won and the amount of 5% per annum from November 1, 2005 to September 20, 2006, and 20% per annum from the next day to the day of complete payment, shall be reversed, and the judgment of the court of first instance shall be revoked, and the corresponding plaintiff's claim shall be dismissed. The remaining appeal shall be dismissed. The total costs of the lawsuit shall be eight minutes, and the remainder shall be borne by the plaintiff, and the defendant.

The grounds of appeal are examined.

1. Existence of an obligation to pay brokerage commission;

Examining the reasoning of the judgment of the court below and the judgment of the court of first instance cited by the court below in light of the records, the judgment of the court below that the defendant is obligated to pay 525,00 Swiss Francs to the plaintiff as commission for the sales brokerage and mediation of manufacturing equipment of this case for video display devices is just. There is no violation of the legal principles as to the existence of the power of representation and the burden of proof of performance of contract, or violation of the rules of evidence or the rules of experience, as the defendant

2. The base point of time for converting the brokerage commission into the currency of Korea and the initial date of calculation of damages for delay;

Where an obligee claims foreign currency claims which are monetary claims designated in foreign currency into Korean currency by exercising the right to substitute payment, and the court orders the obligor to perform the claims, the court shall set the base time of conversion of foreign currency at the time of closing argument of the fact-finding court which is most close to the obligor's performance into Korean currency (see, e.g., Supreme Court en banc Decision 90Da2147, Mar. 12, 191). In cases where only the obligor appeals and appeals against the performance judgment of the first instance court, the appellate court belongs to the appellate court, and even if the obligor's arguments raised in the course of the trial are groundless, the court shall re-examine the amount of claims at the time of closing argument of the appellate court, and then cite part of the obligor's appeal, unless it violates the principle of prohibition of disadvantageous change.

However, according to the reasoning of the judgment below, the court below rejected the defendant's argument disputing the existence of the obligation to pay brokerage fees of this case on the ground that it cannot accept the defendant's argument, and thus, dismissed the defendant's appeal without converting the amount of brokerage fees into Korean currency as at the time of foreign exchange at the time of the closing of argument in the court below (it is publicly known that the standard rate of transaction in Swiss Franc as at July 19, 2006, which was the date of closing of argument in the court below, was KRW 764.03, which was the date of closing of argument in the court below). Thus, the court below erred by misapprehending the legal principles on the point of time of converting foreign currency claims into Korean currency, which affected the conclusion of the judgment.

In addition, the court below accepted and maintained the reasoning and conclusion of the judgment of the court of first instance ordering the payment of damages for delay from March 24, 2005, the day following the delivery date of a copy of the complaint of this case, while recognizing that the fulfillment period of the obligation to pay the brokerage commission of this case has arrived at around October 2005 while the lawsuit of this case was pending in the court of first instance. Thus, this does not constitute a case of inconsistency in the reasoning of the judgment.

The ground of appeal No. 4 that points out the above points is with merit.

3. Scope of reversal

In light of the facts duly admitted by the court below and the legal principles as seen earlier, the defendant is obligated to pay to the plaintiff 401,115,750 won converted the brokerage commission fee of this case from July 19, 2006 to the rate of 764.03 won as of July 19, 2006, which is the date of closing the argument in the court below, and damages for delay at each rate of 5% per annum under the Civil Act from November 1, 2005 until September 20, 2006, which is the date following the day when the due date is recognized to have come to fall.

Therefore, the part of the judgment of the court below that dismissed the defendant's appeal regarding the amount exceeding the above recognized scope is unreasonable, and it is so decided that this part is reversed, but this case is sufficient for the court to directly render a judgment, and therefore, it is decided to render a self-determination in accordance with Article

4. Conclusion

The part of the judgment of the court below against the defendant, which exceeds the amount of 401,115,750 won and the amount of 5% per annum from November 1, 2005 to September 20, 2006, and 20% per annum from the next day to the day of complete payment, shall be reversed, and the judgment of the court of first instance shall be revoked, and the plaintiff's claim corresponding thereto shall be dismissed, and the defendant's remaining appeal shall be dismissed. The plaintiff's remaining appeal shall be dismissed, but the total cost of the lawsuit shall be eight minutes, and the remainder shall be borne by the plaintiff, and it shall be decided as per Disposition by the assent of all participating

Justices Kim Hwang-sik (Presiding Justice)