2016Da264587, Confirmation of the existence of an obligation

2016Da264594 (Counterclaim) Construction Costs

person

A Limited Liability Company A

B Limited Liability Company

Gwangju High Court ( Jeonju) 2015Na 101400 (Mainju), 2015Na 2015Na decided October 20, 2016

101417 Judgment (Counterclaim)

6, 2017. 6

The part of the judgment of the court below against the plaintiff (Counterclaim defendant) among the main claim and the counterclaim claim shall be reversed, and this part of the case shall be remanded to the Gwangju High Court.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. The court shall determine whether a factual assertion is true in accordance with logical and empirical rules based on the ideology of social justice and equity in consideration of the overall purport of pleadings and the outcome of the examination of evidence (Article 202 of the Civil Procedure Act). The fact that the judgment of the court below does not go beyond the bounds of the principle of free evaluation of evidence, and thus legitimately confirmed is binding on the court of final appeal (Article 432 of the same Act). However, the principle of free evaluation of evidence declared by Article 202 of the Civil Procedure Act does not require a judge’s arbitrary judgment, as it does not allow a judge’s arbitrary judgment. Thus, the recognition of facts is in accordance with logical and empirical rules based on the principle of justice and equity by evidence duly admitted as evidence through legitimate examination of evidence, and even if the fact-finding belongs to the discretion of the court of final judgment (see, e.g., Supreme Court Decision 2009Da7198, 77204, Apr. 13, 2012).

A. The H remodeling construction work (hereinafter referred to as the “instant construction work”) as indicated in the judgment of the court below is executed by the Plaintiff (Counterclaim Defendant; hereinafter referred to as the “Plaintiff”) as a substantial subject, and the Defendant (Counterclaim Plaintiff; hereinafter referred to as the “Defendant”) is related to lending the name. As such, the costs incurred in connection with the instant construction work are borne by the Plaintiff, and the value-added tax amounting to KRW 1.5 billion paid in the name of the Defendant (hereinafter referred to as the “value-added tax”).

B. The Plaintiff paid the expenses for the instant construction to the Defendant’s bank account in the name of the Defendant, and paid the money deposited from the said bank account again or remitted to the subcontractor. Therefore, from the total expenses paid under the Defendant’s name including value added tax with respect to the instant construction, only the difference that the Plaintiff deducteds the total amount of the money paid to the Defendant from the total expenses paid to the Defendant in the name of the Defendant, including value added tax, can be deemed to have been paid with the Defendant’s funds. Therefore, the reasonable cost of the value added tax claimed by the

C. (1) According to the statement of H entry and withdrawal (No. 30, hereinafter “the statement of entry and withdrawal of this case”) in which the Defendant arranged the details of the deposit and withdrawal from the Defendant’s deposit account in relation to the instant construction project, the sum of the money deposited or remitted from the deposit account in the Defendant’s name is KRW 1,612,631,121, and the sum of KRW 11,076,336,36 was remitted for other purposes, as alleged by the Plaintiff, regardless of the Plaintiff’s assertion, as the amount was remitted for other purposes without connection with the instant construction project, the amount excluding this was paid as the expense for the instant construction. ② If the Defendant exceeds the aggregate of value-added tax on the instant construction project paid by the Defendant on July 31, 2013 and May 9, 2014, the sum of the expenses paid under the Defendant’s name as to the instant construction project exceeds KRW 91,692,54,785 won.

(2) On November 12, 2012, the Plaintiff asserted that KRW 29,200,000, deposited from the deposit account in the Defendant’s name, should be excluded since it was deposited for other purposes without connection with the instant construction project. However, in light of the circumstance that the Plaintiff’s money managed by the Plaintiff and deposited with other money deposited with the instant construction cost, the Plaintiff’s assertion is rejected.

D. Meanwhile, according to the statement of the entry and withdrawal of this case, the plaintiff as to the construction of this case.

The sum of the money deposited into the deposit account in the name of the Plaintiff is KRW 1,497,197,00. ② Unlike the Plaintiff’s assertion, it is recognized that the money was deposited in the above deposit account as well as KRW 3,000,000 on August 7, 2012, and KRW 570,000 on December 1, 2012. Thus, the sum of the money paid by the Plaintiff to the Defendant is KRW 1,50,767,00.

E. Ultimately, the difference between the sum of total expenses paid in the name of the Defendant including value added tax with respect to the instant construction is KRW 191,787,785, which remains after deducting the aggregate amount paid by the Plaintiff to the Defendant. This exceeds the amount of the value added tax claimed by the Defendant as a counterclaim, and the Plaintiff is obliged to pay the amount equivalent to the value added tax of this case to the Defendant.

3. The part of the Plaintiff’s ground of appeal disputing the fact-finding that led to the lower court’s determination under paragraph (c)(2) above is merely a determination on the admission of evidence and the value of evidence belonging to the free trial of the fact-finding court, and thus cannot be accepted. In addition, even if examining the reasoning of the lower judgment in light of the aforementioned legal principles and the evidence duly admitted, barring any other circumstance, the lower court’s determination in

It is difficult to see that there is an error.

4. (1) However, in order to calculate the amount paid by the Plaintiff to the Defendant in the name of the Defendant with regard to the money and the instant construction, the details of the deposit and the details of the deposit in the Defendant’s name stated in the statement of the instant deposit and withdrawal, such as the judgment of the court below, should be examined as to whether the details of the deposit and withdrawal stated in the statement of the instant deposit and withdrawal coincide with the actual details of the deposit and withdrawal in the Defendant’s name.

(2) (A) However, according to the evidence Nos. 31 and B No. 34, the Plaintiff’s transfer of KRW 45,000,000, out of KRW 50,000,000 deposited in the bank account (Account Number M) in the name of the Defendant on December 28, 2012, to the National Agricultural Cooperative Deposit Account (Account Number N; hereinafter “N Account”) in the name of the Defendant on the same day.

However, considering the details of deposits in the N Account among the details of the instant deposit and withdrawal, the details of deposits in KRW 45,000,000 on December 28, 2012 are omitted.

(B) Meanwhile, considering the details of the instant deposit account (Account Number 0, 200, 2000,000 on November 30, 2012, the details of the instant deposit and withdrawal are written as follows: (a) the deposit and withdrawal amount of KRW 15,00,000 on the date is written; and (b) the deposit and withdrawal amount of KRW 15,00,000 on the date is written as P-related surtax.

However, according to the evidence evidence No. 32, there is no transaction details from the account to the amount of KRW 100,000,000 on November 30, 2012, and there is no transaction details from the account between the Plaintiff and the Defendant from March 2012 to April 2013.

(3) In light of the circumstances, the lower court should have determined that the sum of the amount deposited in the Defendant’s name deposit account and the amount deposited or remitted from the Defendant’s deposit account should be calculated based on the confirmed amount after individually checking the details of the deposit and withdrawal from the account in the name of the Defendant, rather than based on the evidence adopted by the Defendant.

(4) Nevertheless, the court below calculated the amount of expenses paid out of the Defendant’s funds based on the details of the deposit and withdrawal stated in the statement of the instant deposit and accepted part of the Defendant’s counterclaim claim and rejected the Plaintiff’s claim. In so doing, the court below erred by failing to exhaust all necessary deliberations, thereby exceeding the bounds of the principle of free evaluation of evidence. The ground of appeal assigning this error is with merit.

5. Therefore, without examining the remaining grounds of appeal, the part of the judgment below against the plaintiff among the main claim and the part against the plaintiff among the counterclaim claim is reversed, and this part of the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Jae-young

Justices Kim In-bok, Counsel for the defendant

Justices Kim Jae-han

Justices Lee Dong-won