2018T. 101988 Return of annual withdrawal fees, etc.

A Stock Company

Attorney Lee Lee-soo, Counsel for the defendant-appellant

1. B

2. C.

3. D;

4. E.

Since it is a minor, the legal representative father B

[Judgment of the court below]

Attorney Cho Jae-ho

January 24, 2019

February 14, 2019

1. The plaintiff's claims against the defendants are all dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

Defendant B shall pay to the Plaintiff 113,66,66 won, Defendant C, D, and E each of them, 75,77,777 won, and 15% interest per annum from the day following the day of service of the copy of the instant complaint to the day of full payment.

1. Basic facts

A. On February 22, 2016, the Plaintiff entered into a broadcast drama agreement with F and stock companies (F as representative director and shareholder per one person; hereinafter referred to as “G”) (hereinafter referred to as “instant agreement”). The key contents are as follows.

The term of this contract under Article 2(Period of Contract) shall be the date until the end of the broadcast of F as determined in this contract at the time when the plaintiff and F sign and seal the contract at the time of signing and sealing it. The service products under Article 3 (Subject to Contract): The amount per plaintiff in this contract on the basis of HD format, 70 minutes in total once per 70 minutes in the meeting: the amount per annum: the amount per 25 million won in the case of the plaintiff: the annual broadcast fee per 25 million won shall be paid to F on the commission of the annual broadcast as follows. 4. The plaintiff shall be paid 3 million won per month from the date of signing this contract at the cost of the annual broadcast work of F until the date when the work of the contract is carried out by F until the date when the work of the contract is closed. The plaintiff shall not be obliged to cancel the production of the plaintiff's obligation to return or cancel its work due to reasons such as termination of the contract and the agreement on compensation for damage and the settlement of the plaintiff's obligation of F.

B. The Plaintiff paid the down payment of KRW 275 million to G account on the day of the contract, and paid KRW 66 million per month to F for 22 months from February 2016 to November 2017, in total, KRW 300,000 per month as the cost of running the business.

C. The F died on January 13, 2018. The Defendants, the inheritor, filed a declaration of renunciation of inheritance on February 27, 2018, and the Seoul Family Court accepted the said declaration on May 18, 2018 (2018 DJ 50620).

[Reasons for Recognition] Unsatisfy, Gap evidence 1 through 10 (including each number in the case of provisional number), Eul evidence 1 to 3, the purport of the whole pleadings

2. Determination

A. The plaintiff's assertion

1) Since the production of drama was suspended due to the death of F due to force majeure, F is obligated to refund the total of KRW 341 million of the cost of smoke and the cost of smokeing operations, and Defendant B’s spouse who inherited his obligation is obligated to pay the total of KRW 113,66,66,66, and Defendant C, D, and E, respectively, 2/9,77,777, and damages for delay.

2) On February 7, 2018, prior to the renunciation of inheritance, Defendant B disposed of Htel I (hereinafter “the instant officetel”) on February 7, 2018. The instant officetel was in the name of the Defendant B, but the instant officetel was in the name of F, and its disposal act constitutes a statutory net approval ground under Article 1026 subparag. 1 of the Civil Act.

B. Determination

1) Inasmuch as drama production was interrupted due to force majeure, rather than the Plaintiff or F’s death, it is reasonable to deem that part of the annual payment paid pursuant to Article 12(4) of the instant contract ought to be refunded. However, there is no basis for refund. Furthermore, as the Defendants renounced inheritance, it is difficult to deem that the F’s obligation to return was inherited to the Defendants, the heir, barring any special circumstances.

2) According to the statement in Gap evidence No. 14, Defendant B purchased the instant officetel at KRW 184 million from September 15, 2015 to J and completed the registration of transfer of ownership under his/her name on October 1, 2015, and Defendant B sold the instant officetel to K and L on January 26, 2017 and completed the registration of transfer of ownership on February 7, 2018.

The property acquired by one spouse in one’s name during the marriage is presumed to be the unique property of the nominal owner of the property (see, e.g., Article 830(1) of the Civil Act and Supreme Court Decision 95Da25695, Oct. 12, 1995). According to the evidence No. 4, it is reasonable to recognize that Defendant B shared 1/2 NA units of NA units in Seoul and NA units in Seoul, and sold KRW 1195,00,000,000,000,000 won on April 30, 2013. Therefore, it is reasonable to deem that the instant officetel is owned by Defendant B, since the value at the time of purchase is KRW 184,00,000,000,000 won, it constitutes the inherent property acquired by Defendant B with its own funds. In light of these circumstances, the Plaintiff’s assertion and the evidence No. 11 through No. 7 are insufficient to recognize that the instant officetel constitutes the Plaintiff’s inherited property in the title trust of this case.

3. Conclusion

Therefore, the plaintiff's claim against the defendants is dismissed in its entirety as it is without merit. It is so decided as per Disposition.

Judges Kim Jong-tae

Judges Suspension Board

Judges Lee Jae-young