National Federation of Fisheries Cooperatives (Law Firm Shin, Attorneys Cho Dong-jin, Counsel for defendant-appellant)

Defendant (Attorney Seo-ho, Counsel for the defendant-appellant)

July 3, 2009

Busan District Court Decision 2007Gaso258160 Decided December 4, 2008

1.The judgment of the first instance shall be modified as follows:

The Defendant-Counterclaim Plaintiff (Counterclaim Defendant) shall:

(a) pay 8,155,00 won and the interest thereon at each rate of 5% per annum from October 6, 2008 to July 17, 2009 and 20% per annum from the following day to the date of full payment;

B. Delivery of corporeal movables listed in the attached list;

2. All remaining appeals by the Plaintiff (Counterclaim Defendant), remaining appeals by the Defendant (Counterclaim Plaintiff) and counterclaim claims filed in the trial are dismissed.

3. Of the total costs of the lawsuit, five minutes shall be borne by the Plaintiff (Counterclaim Defendant) and the remainder shall be borne by the Defendant (Counterclaim Plaintiff) and the part incurred by the counterclaim shall be borne by the Defendant (Counterclaim Plaintiff).

1. Purport of claim

A. Main suit: the Defendant (Counterclaim Plaintiff; hereinafter “Defendant”) 10,052,114 won against the Plaintiff (Counterclaim Defendant; hereinafter “Plaintiff”) and among them

(1) As regards KRW 3,625,851, 17.5% per annum from April 23, 2006 to May 22, 2006, 18.5% per annum from that next day to July 22, 2006, 19.5% per annum from that next day to that of delivery of a copy of the complaint of this case, and 20% per annum from that next day to that of complete payment;

(2) For 6,309,960 won, 17.5% per annum from April 28, 2006 to May 25, 2006, 18.5% per annum from that next day to July 25, 2006, 19.5% per annum from that next day to that of delivery of a copy of the complaint of this case, and 20% per annum from that next day to that of complete payment.

Each money shall be paid to the plaintiff, and the defendant shall deliver the corporeal movables listed in the attached list to the plaintiff (the plaintiff extended the purport of the claim in the trial).

B. Counterclaim: The plaintiff shall pay to the defendant 24,060,839 won and the amount calculated by the ratio of 6% per annum from May 1, 2009 to the service date of a duplicate of the counterclaim of this case, and 20% per annum from the next day to the day of complete payment (the defendant raised a counterclaim when it comes to the first instance).

2. Purport of appeal

A. The part against the plaintiff in the judgment of the court of first instance shall be revoked. The defendant shall pay to the plaintiff 6,309,960 won 17.5% per annum from April 28, 2006 to May 25, 2006, 18.5% per annum from the next day to July 25, 2006, 19.5% per annum from the next day to the delivery date of the copy of the complaint of this case, and 20% per annum from the next day to the day of full payment.

B. Defendant: The part against the Defendant in the judgment of the first instance is revoked, and the Plaintiff’s claim corresponding to the above revocation portion is dismissed.

A principal lawsuit and counterclaim shall also be deemed a principal lawsuit and counterclaim.

1. Facts of recognition;

A. The plaintiff's first loan

(1) On April 22, 2005, the Plaintiff lent KRW 26,000,000 to Nonparty 1 (non-party to the judgment of the Supreme Court) (hereinafter “non-party 1”). On the same day, the Plaintiff concluded a limited collateral agreement with respect to the corporeal movables in the attached list imported by Non-party 1 (hereinafter “freezing”), which is KRW 34,00,000,000.

(2) The Defendant entered into a deposit contract with Nonparty 1 on the said freezing, and prepared and delivered a written consent of the disposition of the security and a written promise to the Plaintiff that the security may be disposed of even without Nonparty 1’s consent for the recovery of the Plaintiff’s claim.

(3) According to Paragraph (d) of the above letter of undertaking, “the defendant may not have a preferential right to payment related to the lien, etc. even when the plaintiff has made a voluntary disposal of the security, legal measures, etc., realization of the security by any method, and appropriation of the debt.”

B. The Plaintiff’s second loan

(1) On April 25, 2005, the Plaintiff lent KRW 34,000,000 to Nonparty 1 (hereinafter “second loan”). On the same day, the Plaintiff entered into a limited collateral agreement with Nonparty 1 on the same day to KRW 45,00,000 with respect to freezing of freezing imported by Nonparty 1.

(2) The Defendant concluded a deposit contract with Nonparty 1 on the freezing cut of freezing, and prepared and delivered a written consent of disposition and a written commitment to the Plaintiff.

(3) According to Paragraph (d) of the above letter of undertaking, “The Defendant’s exercise of the right of retention for the goods kept in custody provides that the expenses for the goods offered to the Plaintiff may be in arrears.”

C. Non-party 1's outstanding loans

(1) Nonparty 1 failed to fully repay the loan to the Plaintiff by the due date.

(2) The amount of principal and interest of the first loan that Nonparty 1 bears against the Plaintiff is KRW 3,625,851 as of April 22, 2006, and the amount of principal and interest of the second loan is KRW 6,309,960 as of April 27, 2006.

(3) In order to recover the loan to Nonparty 1, the Plaintiff intended to sell freezing and cut off, which is a transfer security, to Nonparty 1, but the Defendant refused the Plaintiff’s request for delivery on the ground that it cannot be shipped out without settlement of the Plaintiff’s storage fees, etc.

[Ground of recognition] Facts without dispute, Gap evidence 1 through 6, 10 (including virtual numbers; hereinafter the same shall apply), Eul evidence 1, 2, and 8, and the purport of the pleading

2. Determination as to the claim on the principal lawsuit

(a) Occurrence of liability for damages and delivery;

(1) The Plaintiff asserted that, due to the Defendant’s refusal to release freezing and cut off goods, the Plaintiff could not exercise the security right. Accordingly, the Defendant failed to recover the principal and interest of the instant loan Nos. 1 and 2, so the Defendant shall pay the Plaintiff the amount equivalent to the above principal and interest as damages, and the Plaintiff, the mortgagee, should deliver freezing to the Plaintiff.

(2) The defendant asserts that although the letter of undertaking prepared in relation to freezing goods is stipulated to waive the right of retention, it is written in the same letter, and generally accepted the warehouse operator's right of retention, since it is customary to recognize the warehouse operator's right of retention, the above provision shall be interpreted not to be just an example. Paragraph d of the letter of undertaking prepared in relation to freezing goods. Since the warehouse operator's right of retention is recognized, the defendant's refusal of freezing goods and shipped out of the warehouse on the ground of the right of storage is justified as the exercise of the right of retention, and there is no liability for damages to the plaintiff and the freezing goods also are not obliged to be paid to the plaintiff.

(3) Determination

Although the letter of undertaking on freezing goods states that the defendant cannot exercise the right of retention, the fact that the defendant stated that he can exercise the right of retention is stated in the letter of undertaking on freezing goods, it is insufficient to recognize that the statement of Nos. 3 and 10, and the testimony of Non-Party 2 of the witness alone is merely an example of the letter of undertaking on freezing goods. There is no other evidence to acknowledge otherwise. Therefore, the defendant's act refusing to withdraw freezing goods constitutes a tort, the defendant is obliged to deliver the freezing goods to the plaintiff, and the defendant's act refusing to leave the freezing goods out of the freezing goods is based on the right of retention, and the defendant's act of refusing to leave the freezing goods out of the freezing goods is not constituted a tort.

B. Scope of claim for damages

(1) The limited collateral agreement entered into between the Plaintiff and Nonparty 1 is to guarantee obligations arising from credit transactions currently and in the future. As such, the amount of damages incurred by the Defendant by refusing the Plaintiff’s request for a freezing shipment is the lesser amount between the total amount of secured obligations arising out of the first and second loans and the decreased security value ( = freezing goods at the time of the request for release - the present value of freezing goods at the time of request).

(2) According to the court of first instance’s entrustment of appraisal to Nonparty 3 and the purport of oral argument, according to the court’s whole purport of appraisal commission and oral argument with respect to Nonparty 3, the price of freezing goods at the time of May 2006, 2006, which the Defendant refused to request the Plaintiff to release, is 24,000 won per gambling, 200/300 business as of May 200, 2000, 200/300 business for gambling, mixing (mix) is similar to the price of 200/300 business and mix (mix). As of October 6, 2008, the fact that the total value of freezing goods at issue in this case is 1,70,000.

According to the above facts, the secured obligation arising from loans 1 and 2 is principal amounting to KRW 9,935,811 ( = principal amount of loans 3,625,851 + principal amount of loans 6,309,960 + principal amount of loans 6,309,960) and damages for delay. The value of the decreased security is KRW 8,155,000 [ = KRW 9,85,000 for freezing Free on May 2006 = KRW 9,85,000 [30/50 for freezing 147 x 24,000] + (20/300 and mix 703 x 9,7000] - 1,700,000 of the existing value of freezing refag x 805,000]. Ultimately, the damages that the Defendant is liable for damages to the Plaintiff should be considered as damages to the Plaintiff.

3. Judgment on a counterclaim

A. The defendant asserts that the plaintiff is the owner of freezing and freezing cut goods, and that he is responsible for paying 24,060,839 won for freezing and freezing goods to the defendant.

B. The fact that the non-party 1 and the defendant concluded a deposit contract for freezing freezing a freezing and freezing a freezing, as seen earlier, the contractual responsibilities are deemed to be the parties to the contract. Therefore, the defendant's assertion that the non-party 1 and the defendant are contractual responsibilities is without merit.

4. Conclusion

Therefore, the defendant is obligated to pay to the plaintiff 8,155,00 won and damages for delay at the rate of 5% per annum as stipulated in the Civil Act from October 6, 2008, which is the date of the final judgment of the court of first instance, to July 17, 2009, and 20% per annum as stipulated in the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings from the next day to the date of full payment, and to deliver freezing to the plaintiff. Thus, the plaintiff's principal claim shall be accepted within the above recognized scope, and the remaining principal claim shall be dismissed due to the lack of any justifiable reason. Since the judgment of the first instance is unfair, the plaintiff and the defendant's appeal shall be partially accepted, and the judgment of the first instance shall be modified as above, and the defendant's remaining appeal and the defendant's counterclaim claim raised in the court of first instance shall be dismissed as it is without merit. It is so decided as per Disposition.

[Attachment of List]

Judges Go Jong-ju (Presiding Judge)