공탁금출급청구권 확인의 소
The judgment below is reversed and the case is remanded to Seoul High Court.
The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).
1. Review of the reasoning of the lower judgment and the record reveals the following facts.
A Co., Ltd. (hereinafter referred to as “A”), Category B, F, D, and the Defendant jointly agreed to jointly carry out the business of creating, developing and selling the first and five parcels of land as an electric source housing complex. On March 29, 2002, a real estate disposal trust agreement (hereinafter referred to as “the first trust agreement”) was concluded with the truster, etc., five including the above A, and the trustee, a trust company, as a living real estate trust company (hereinafter referred to as “living trust”).
B. On March 31, 2004, the interested parties, including the truster, trustee, priority beneficiary, and the pledgee of the right to benefit under the first trust agreement, during the attendance of all interested parties, including the plaintiff, etc., the defendant prepared a memorandum of agreement that transfers the defendant's rights under the first trust agreement with A under the following conditions. The interested parties under the first trust agreement including the plaintiff, etc. are as follows:
I agreed to modify the same content as the second trust agreement.
(1) Paragraph (1) provides that “A shall deliver KRW 900 million of the beneficiary certificates issued and guaranteed in the life trust to the Defendant.”
(2) Paragraph (9) provides that “The date of payment of the certificate of beneficial interest shall be set on August 31, 2004, and in extenuating circumstances, four months shall be paid to A with interest based on the amount of beneficiary certificates.”
C. A, from May 25, 2004 to July 2005, acquired the ownership of the instant real estate changed from the above I and five parcels of land from the point of view of subdivision and combination, etc., and entered into a new real estate disposal trust agreement (hereinafter “the second trust agreement”) with the first beneficiary as follows.
(1) Paragraph (1) of Article 5 of the Special Agreement provides that the first beneficiary shall be the representative G (4.3 billion won) of Class B.