Plaintiff 1 and three others (Attorney Kim Jong-hwan, Counsel for the plaintiff-appellant)

Defendant Co., Ltd. (Law Firm Barun, Attorneys Gyeong-young et al., Counsel for the defendant

August 25, 2005

Daegu District Court Decision 2004Da26161 Delivered on December 15, 2004

1.The judgment of the first instance, including a claim modified in the trial, shall be modified as follows:

A. At the same time, the Defendant received gift certificates listed in paragraph (1) of the attached list from Plaintiff 1 and received them from Plaintiff 2,169,000, and at the same time, received gift certificates listed in paragraph (2) of the same list from Plaintiff 2, and from Plaintiff 3, at the same time, received gift certificates listed in paragraph (3) of the same list from the above Plaintiff 5,187,000, and at the same time received gift certificates listed in paragraph (4) of the same list from Plaintiff 4, and at the same time, paid to the above Plaintiff 4,90,00 won and each of them at the rate of 6% per annum from March 17, 2004 to September 15, 205, and 20% per annum from the next day to September 15, 2005.

B. All remaining claims of the plaintiffs are dismissed.

2. The total costs of the lawsuit shall be ten percent, and three percent shall be borne by the Plaintiffs, and the remainder by the Defendant, respectively.

3. Paragraph 1(a) of this Article may be provisionally executed.

1. Purport of claim

At the same time, the defendant received merchandise coupons listed in paragraph (1) of the attached Table 1 from the plaintiff 1 and received merchandise coupons listed in paragraph (2) of the same list from the plaintiff 2, the above plaintiff 3,1670,000 won, the defendant received merchandise coupons listed in paragraph (3) of the same list from the plaintiff 3, and simultaneously received merchandise coupons listed in paragraph (4) of the same list from the plaintiff 4, the above plaintiff 7,000,000 won and each of them to the above plaintiff 1 at the rate of 20% per annum from the day after the delivery of a copy of the complaint of this case to the day of complete payment (the plaintiff revised its claim in the trial as above).

2. Purport of appeal

The part of the judgment of the court of first instance against the defendant shall be revoked, and all of the plaintiffs' claims corresponding thereto shall be dismissed.

3. Purport of incidental appeal;

The judgment of the first instance shall be modified as stated in the purport of the claim.

1. Basic facts

The following facts do not conflict between the parties, or may be acknowledged by taking into account the following facts: Gap evidence Nos. 1 and 2-1, 2, 3-3, Gap evidence Nos. 4-1, 2-4, 6-2, 4, 8, Eul evidence Nos. 7-6 through 14, 16, 17, 18, 20, 21, Eul evidence Nos. 11 and 12, and part of the testimony of non-party No. 1 of the first instance trial.

A. The Plaintiffs are persons engaged in the wholesale and retail business of various merchandise coupons, and the Defendant is a company with the purpose of manufacturing and selling goods, such as verbal or bags.

B. On January 3, 200, Plaintiff 1 purchased KRW 300,000 (the total face value of KRW 30,000) of the Defendant’s merchandise coupons issued by Nonparty 2 to Nonparty 3, 70,000 (the total face value of KRW 30,000) at KRW 1,98,00,000 (the total face value of KRW 1,760,000) at KRW 1,766,00,000 (the total face value of KRW 1,760,000, KRW 67,000) at KRW 1,792,00,000 (the total face value of KRW 1,760,000) at KRW 7,000,000, KRW 67,000,000 per face value of KRW 67,000,000 for merchandise coupons issued by Defendant 1 to Nonparty 3.

C. As above, although consumers who purchased merchandise coupons from the plaintiffs request that the defendant provide the defendant's product while presenting merchandise coupons to the defendant, the defendant was definitely refused to provide the merchandise coupons on the ground of theft. Among each merchandise coupon, the plaintiff 1's merchandise coupons 100,000 won in the merchandise coupons 100,000 won in the merchandise coupons 280,000 won in the merchandise coupons 100,000 in the merchandise coupons 295, 70,000 won in the merchandise coupons 295, 31,00 won in the merchandise coupons 295, 31,000 won in the merchandise coupons 10,000 won in the merchandise coupons 65,70,000 won in the merchandise coupons 10,000 won in the list 3 of the plaintiff 3, and the plaintiff 40,000 won in the merchandise coupons 7,710,000 won in total (hereinafter referred to as "the merchandise coupons in each of this case").

D. Meanwhile, while purchasing merchandise coupons as above, the plaintiff 1 confirmed that the defendant's Daegu Branch and the merchandise coupons purchased by the plaintiff 1 were issued normally.

2. Determination

A. According to the above facts, the defendant, as an issuer of the gift certificates of this case, is obligated to provide the defendant with the gift certificates and to supply the defendant's product in accordance with the contents stated in the gift certificates. However, since the defendant refused to provide the gift certificates from the actual purchaser of the gift certificates of this case, the plaintiffs who are the final holders of the gift certificates of this case can immediately claim damages in lieu of the performance without the notice of performance of the duty to provide the products. Meanwhile, in case where the damage suffered by the plaintiffs who were the holders due to the defendant's failure to perform the above duty is equivalent to the face value of the gift certificates of this case, the defendant is obligated to pay the plaintiffs the total face value as compensation in lieu of the performance of the above duty, unless there are special circumstances.

B. Judgment on the defendant's assertion

(1) Claim for acquisition from an unentitled person

The defendant, in accordance with its internal rules, prohibits the sale of merchandise coupons at discount exceeding 20% of the discount rate (1% or 5% of the discount rate can be made when the defendant's head office was approved). The defendant's employee, in collusion with the non-party 3 and the non-party 6, who is the merchandise coupon distributor, sold merchandise coupons received from the head office at discount rate exceeding the above discount rate and escaped abroad with the price. The plaintiff, although the non-party 2 was not authorized to sell merchandise coupons at discount rate exceeding 25% of the highest discount rate, he did not know the fact that the sale price was sold at discount rate, or acquired the merchandise coupon in this case with the intention to embezzled it, and therefore, he cannot be deemed that he acquired the right to the merchandise coupon in this case, and thus, the defendant cannot be held liable as the issuer of the merchandise coupon in this case.

Therefore, there is no evidence to acknowledge the fact that the plaintiffs knew that they sold the gift certificates of this case without authority. Thus, the plaintiffs' above assertion based on this premise is without merit.

Then, comprehensively taking account of the facts as to whether the plaintiffs were unaware of their knowledge due to gross negligence, and the purport of the argument in the above No. 1 and No. 2, the defendant's Daegu District District Court's Daegu District Court's Decision 6,505 out of the gift certificates entered in Daegu District Department Store's Daegu District Office's Daegu District Office's Daegu District Court Decision 200% of the sales discount rate of the gift certificates to the defendant's 66% or 67% of their face value (3% or 34% of the discount rate). The defendant's assertion that the plaintiff 1, 2, and 3 did not transfer the price of the gift certificates to the defendant's bank account and the non-party 2's account to the non-party 1, and that the defendant's sales discount rate of the gift certificates were no more than the defendant's sales discount rate of the gift certificates of this case. The plaintiff 1, and 4 did not know the plaintiff 2's remaining sales discount rate of the gift certificates of this case.

However, the plaintiffs' above mistake also caused the occurrence or expansion of damages caused by this case. Thus, for the fair apportionment of damages, the defendant's liability should be limited in consideration of the scope of damages that the defendant should compensate for. However, in light of the plaintiffs' occupation revealed in the above facts, the process and purpose of acquiring the gift certificates of this case, and the profits that the plaintiffs could have earned when the gift certificates of this case are settled normally (as seen above, the plaintiffs purchased the gift certificates of this case and sold them to intermediate sellers with 10% profit or 2% profit at the purchase price, and sold them to general consumers with approximately 10% profit at the purchase price). In light of various circumstances, it is reasonable to determine the defendant's liability ratio as 70% of the total damages.

(2) Defenses of simultaneous performance

Since the defendant asserts that the claim in this case cannot be complied with before the return of the gift certificate in this case from the plaintiffs, the defendant, who is the issuer of the gift certificate in this case, bears the risk of double payment, so to prevent this, the plaintiffs shall return the gift certificate in this case to the defendant in order to prevent this. Meanwhile, it is reasonable that the defendant's obligation to compensate for damages in this case and the obligation to return the gift certificate in this case are in simultaneous performance relationship in light of the concept of fairness and good faith. Thus, the above argument by the defendant is justified (However, deeming that the obligation to return in this case and the obligation to return the gift certificate in this case are in simultaneous performance relation is not in the bilateral contract obligation and the obligation to return the gift certificate in this case, but in order to prevent the risk of double payment as above, it is aimed at preventing the risk of double payment. Thus, as to the obligation to compensate for damages in this case, it shall be deemed that the defendant is liable for delay of payment from the day after the notice of its performance was received (see Supreme Court Decision 98Da47542, 4759 delivered

C. Sub-committee

Therefore, at the same time with the delivery of merchandise coupons listed in paragraph (1) of the attached Table 1 from Plaintiff 1, as well as the delivery of merchandise coupons listed in paragraph (2) of the same list from Plaintiff 2,169,00 won (28 million won x 0.7) and the above Plaintiff 22,169,000 won (3,167 million won x 0.7) to Plaintiff 3 at the same time with the delivery of merchandise coupons listed in paragraph (3) of the same list from Plaintiff 3, the above Plaintiff 5,187,00 won (7,000 won x 0.7 billion won x 0.7), the delivery of merchandise coupons listed in paragraph (4) of the same list from Plaintiff 4 to the above Plaintiff 4 by the annual interest rate of KRW 4.9 million (7 million x 0.7 million x 0.7 billion x 9% interest rate of KRW 2005 per annum of this case).

3. Conclusion

Therefore, the plaintiffs' claims shall be accepted within the above scope of recognition, and the remaining claims shall be dismissed as there is no reason. Since the judgment of the court of first instance is unfair with a different conclusion, it is so decided as per Disposition by changing the judgment of the court of first instance, including the changed claims in the trial.

[Attachment Omission of List of Gift Certificates]

Judges Lee Jong-young (Presiding Judge)