Representative Director 000

2. B;

Representative Director 000

Plaintiffs, 000,000

Representative Director 000

Law Firm 00

Attorney 000

The defendant shall pay the amount of KRW 1,560, 533, 330 as well as the amount equivalent to 6% per annum from September 19, 2014 to May 15, 2015, and 20% per annum from the next day to the date of complete payment, to the trust account of a land trust contract of sale type concluded on October 13, 2002 between the plaintiffs and the defendant.

2. The plaintiffs' remaining claims are dismissed.

3. Of the total litigation costs, 60% is borne by the Plaintiffs, and the remainder is borne by the Defendant.

4. Paragraph 1 can be provisionally executed.

The defendant shall be 3, 876, 226, 501 won and years from November 5, 2008 to the rendering of a judgment in the first instance.

6%, from the following day to the date of recovery, 20% interest per annum shall be paid to the Plaintiffs and Defendant Company.

Accordingly, the trust property of the sale-type land trust contract concluded on October 13, 2002 is restored to its original state.

(The claim of this case is interest from the trust account of the trust contract stated in the claim of this case by the defendant

The money withdrawn under the name of the defendant shall be recovered, and the recovery shall be equivalent to the money that the defendant withdraws.

B The Defendant is bound to pay the instant claim to the trust account again. As such, the Defendant is bound to do so

to the trust account of the trust agreement stated in the purport of the claim

claim shall be deemed to be sought.)

[Purpose of Appeal by the Plaintiffs]

The part of the first instance judgment against the plaintiffs shall be revoked.

The defendant shall be 3, 763, 168, 334 won and years from November 5, 2008 to the rendering of a judgment in the trial.

6%, from the following day to the date of recovery, 20% interest per annum shall be paid to the Plaintiffs and Defendant Company.

Accordingly, the trust property of the sale-type land trust contract concluded on October 13, 2002 is restored to its original state.

[Purpose of Defendant’s Appeal]

The part of the first instance judgment against the defendant shall be revoked, and the plaintiffs' claims corresponding to the above revocation shall be revoked.

All appeals are dismissed.

A. On October 13, 2002, the plaintiffs entered into a sale-type land trust contract with the defendant for the purpose of newly constructing and selling (sale) four apartment complexes in the name of Ulsan 00 -0 00 - 00 - ** - - in trust with the defendant for the defendant and selling (sale). The main contents are as follows (hereinafter referred to as the "trust of this case").

Article 4 (Borrowing of Funds)

(1) The defendant may appropriate funds necessary for building construction and performance of trust affairs from trust property, or borrow funds at the expense of the plaintiffs and beneficiaries.

(2) The amount, repayment period, terms, etc. of loans following the borrowing of funds shall be determined by the defendant.

Article 19 (Payment of All Expenses)

(1) The following expenses shall be borne by the plaintiffs:

1. Taxes and public charges on trust property (value-added tax on the implementation of a trust project, acquisition tax, registration tax, public charges, etc. entered in the registration for preservation of building), and all registration expenses;

2. Design and supervision expenses and construction cost;

3. Repayment of loans, rental deposit, etc. and interest thereon;

4. Repair, preservation, and improvement expenses of real estate in trust, and fire insurance premiums;

5. Expenses incurred in selling in lots and in dealing with rental affairs;

6. Other expenses corresponding to the subparagraphs of the preceding paragraph.

(2) The defendant shall pay the expenses under paragraph (1) from the trust property, and if it is impossible to pay them, he may request and receive them, and if necessary, he may have the plaintiffs deposit a reasonable amount in advance.

(3) The defendant shall also be deemed the expenses incurred without negligence in the course of performing trust affairs and shall be deemed the expenses under paragraph (2).

Article 20 (Appropriation of Expenses Incurred in Realization of Trust Property)

Where the repayment of borrowings and interest accrued from trust property, losses incurred without the fault of the defendant in the course of performing trust affairs, and other expenses incurred in performing trust affairs, and substitute payments of the defendant are insufficient, the plaintiffs shall be claimed, and where the defendant falls short thereof, the method and value deemed reasonable by the defendant may be sold in whole or in part and appropriated for the payment thereof.

B. On February 3, 2003, the Defendant contracted the construction of the said apartment to the OO on February 3, 2003. On January 31, 2005, after the completion of the said construction, the Defendant obtained approval for the use of the said apartment, and completed the sale of the said apartment on October 17, 2008.

C. From 2002 to 2008, the Defendant loaned funds from the Defendant’s own funds to the trust account stipulated in the instant trust agreement from the Defendant’s own funds mixed with the outside loans (hereinafter “the instant loan”). Of these, the loan from the outside loan is referred to as “loan from the outside loan outside of the instant case,” and the Defendant’s loan from the outside loan is referred to as “loan from the outside loan outside of the instant case.”

In addition, as shown in attached Form 1, the sum of KRW 4,423,732,59 was transferred from the trust account under the trust contract of this case to the defendant's own account (hereinafter "the transfer money of this case") as shown in attached Form 1 as interest on the loan of this case, and the part arising from the loan of this case from the outside loan of this case is "transfer money related to the outside loan of this case", and the part arising from the loan of this case is "transfer money related to the own loan of this case").

(1) The annual aggregate of the transferred funds of this case is as stated in the column of "the sum of the transferred funds by year" as stated in Attached 1. The sum of the transferred funds by year is as follows: (2) and (3) the sum of the annual aggregate of the transferred funds related to the external loans of this case is as stated in the column of "the annual aggregate of the transferred funds related to the external loans of this case" as stated in Attached 1. (3) The annual aggregate of the transferred funds related to the own funds of this case is as stated in the corresponding column of "the annual aggregate of the transferred funds related to the own funds of this case" as stated in Attached 1.

D. On April 10, 2013, the Plaintiffs filed the instant lawsuit claiming that the Defendant pay KRW 100,000,100,000 to the Defendant’s own account from the trust account of the instant trust agreement is null and void in violation of Article 31(1) of the former Trust Act, which is a mandatory law. As such, the Defendant is obligated to return the instant transfer amount to the Plaintiffs as the proceeds of the instant trust business.

E. On August 21, 2014, the appraiser of the first instance court submitted to the first instance court the appraisal result, namely, KRW 547,506,058, of the instant transfer funds from 2002 to 2008.

F. On September 17, 2014, the Plaintiffs submitted to the first instance court a written application for modification of the purport and cause of the claim (hereinafter “written application for modification of the claim of this case”) according to the above appraisal, and subsequently changed the Plaintiffs’ claim to recover the transfer amount of KRW 3,876,226,50 related to the equity capital of this case ( = KRW 4,423,732,559 - the transfer amount of this case - the transfer amount of KRW 547,506,058 relating to the external loan of this case) from the trust account of the instant trust contract to the Defendant’s account pursuant to Article 31(1) of the former Trust Act, which is a mandatory law, since the Defendant is in violation of Article 31(1) of the former Trust Act.

[Ground of recognition] A without dispute, Gap evidence Nos. 1 through 5 (including the number of each branch; hereinafter the same shall apply), Eul evidence Nos. 1 through 4, the result of the appraisal by the first instance trial appraiser 00, the purport of the whole pleadings

2. Determination as to the assertion on the cause of claim

A. Relevant legal principles

According to the main text of Article 31(1) of the former Trust Act (amended by Act No. 7428, Jul. 25, 201; hereinafter “former Trust Act”), transactions conducted in violation of the above provision are null and void, unless any special circumstance exists to the contrary, in which the trust property is its own property or it is difficult to obtain the right thereof, and transactions conducted in violation of the above provision are invalid. Meanwhile, in the case of a trust other than money trust, where the trustee is a trust company, Article 12(1)2 of the Trust Act (proviso 3 of Article 31(1) of the Trust Act). In light of the fact that there is a very strict regulation by excluding the application of the proviso of Article 31(1)2 of the Trust Act, the mere fact that transactions between the trust property and the trust property conducted by the trust company are beneficial to the beneficiary cannot be deemed valid (see Supreme Court Decision 2006Da62461, Jan. 30, 2009).

B. Determination

In light of the above legal principles, the loan of this case is null and void because it violated Article 31 (1) 4 of the former Trust Act, and it cannot be deemed that the loan of this case was incurred a loan equivalent to interest due to invalid loan claims. Thus, the defendant is liable to compensate for delay damages as of September 18, 2014 from the day following the day on which the plaintiffs filed a claim for recovery of the above trust property to the defendant, which is the remainder after deducting the total transfer amount of 547,506,058 Won 7) from the total transfer amount of this case from the total transfer amount of 4,423,732,559 won under Article 38-5 of the former Trust Act (Article 38-5 of the former Trust Act).

3. The defendant's assertion and defense

A. The assertion that it is not a violation of Article 31(1) of the former Trust Act

The Defendant’s lending of its own funds to ① The nature of the instant trust agreement, which is a “loan-type land trust.”

In addition, it is valid in light of the relevant laws and regulations, or that it is beneficial to the plaintiffs, so it is not valid in that it is not an act. <3> The defendant argues that it is valid in that it was to perform its financing obligation as stipulated in the instant trust contract, or that it is valid in that it was consented by the plaintiffs or was made by the plaintiffs' active

On the other hand, this case's own loan becomes null and void due to the violation of Article 31 (1) of the former Trust Act, which is a mandatory provision, and therefore, the defendant's assertion that this case's loan cannot be deemed valid only with the above reasons of the defendant's assertion. Thus, the above arguments are without merit.

(b) Mutual aid against the opportunity cost.

If the defendant did not own own loan of this case, he would have been able to make profits from at least 2,135,885,907 won by operating the loan of this case for other purposes, and he would have suffered losses from the loan of this case (hereinafter referred to as the "Defendant's opportunity cost of assertion"), and the defendant's opportunity cost of assertion falls under the damages that the defendant incurred without negligence for performing the trust affairs, and thus, the defendant may claim compensation against the plaintiffs pursuant to Article 42 of the former Trust Act, and thus, the defendant must deduct this from the trust recovery cost.

On the other hand, Article 42(1) of the former Trust Act provides that "any taxes, public charges, and other expenses borne by the trustee in connection with the trust property, or any damages incurred to the trustee in order to perform the trust affairs, may be exercised in preference to other rights-holders by selling the trust property and taking precedence over any other rights-holder." Since "tax, public charges, and other expenses borne with respect to the trust property under the above Act and subordinate statutes" refers to the expenses actually paid or borne by the trustee for the trust affairs, the defendant's assertion that the opportunity cost of claiming the trust corresponds to the expenses under Article 42 of the former Trust Act is without merit.

(c) Claims for deduction equivalent to statutory interest;

The defendant may claim compensation of the amount equivalent to the commercial interest on the loans of this case against the plaintiffs under Article 42 of the former Trust Act. Thus, the defendant's assertion that KRW 2,271,677,579, the amount equivalent to the commercial interest on the loans of this case, which is the legal interest on the loans of this case, should be deducted within the scope of the defendant's restoration to the original state. Thus, the loan of this case is null and void as determined above. Thus, the defendant's assertion is without merit, since the commercial interest on the invalid loans of this case cannot be deemed to be the expenses properly borne by the defendant for the execution of the trust affairs of this case.

In addition, Article 688(1) and (9) of the Civil Act can be applied by analogy of Article 55(2)10 of the Commercial Act to the plaintiffs. Thus, the defendant's assertion that the amount equivalent to the statutory interest on self-financing of this case should be deducted within the scope of restoration to the original state of the defendant. Thus, in a case where there is no law that directly provides for a certain matter, the interpretation refers to the application of the law that provides the most similar matter to the above matter. Thus, as Article 42 of the former Trust Act explicitly provides for the trustee's claim for reimbursement of expenses, Article 688(1) of the Civil Act or Article 55(2) of the Commercial Act can not be applied by analogy. Thus, the defendant's assertion is without merit.

D. (1) The Defendant asserted that the Defendant’s right to claim the recovery of trust property of the Plaintiffs could be exercised from the time when the Defendant transferred the funds to the Plaintiff, and thus, the Defendant’s right to claim the recovery of trust property of the Plaintiffs had run a five-year commercial statute of limitations from the time of each transfer.

(B) On the starting date of the extinctive prescription, Article 166(1) of the Civil Act provides that "the extinctive prescription shall run from the time when a claim can be exercised." The plaintiffs can claim the restoration of each of the transferred money to the trust property of this case on the ground that each of the transferred money related to one's own funds of this case was damaged by the trust property of this case. As alleged by the plaintiffs, the date of final transfer, the time of recognition of the plaintiff, the date of public notice of the defendant's disposal, the date of completion of the trust business of this case, or the date of settlement under the trust contract of this case cannot claim the recovery of the trust property. Thus, the initial date of the extinctive prescription is each the date of transfer of the transferred money of this case. (c) If the trust is divided into health class for the period of the extinctive prescription, the trust of this case constitutes a trust acquired by the defendant for business operation of the trust of this case.

① However, since the commercial prescription system under Article 64 of the Commercial Act is a system due to the unique nature of the commercial relationship such as large volume, fixed and swift commercial transaction, it shall be deemed that the period of extinctive prescription of ten years is not the period of extinctive prescription of five years, but the period of extinctive prescription of ten years (see, e.g., Supreme Court Decisions 2002Da64957, 64964, Apr. 8, 2003; 2004Da22742, Nov. 10, 2005; 2) since the period of trust is set for a long time, the period of trust shall not be deemed to apply mutatis mutandis to a claim for return of unjust enrichment or a claim for damages related to commercial transaction, and it shall not be deemed that the period of extinctive prescription of a truster’s right to claim restitution of trust property is more than 16 years, and it shall not be deemed to apply mutatis mutandis to a truster’s right to claim restitution of trust property.

It is reasonable to see that it is ten years of age.

(D) Accordingly, the plaintiffs' right to recover trust property against the defendant has expired when 10 years have elapsed from the date of each transfer.

(2) As to the Plaintiff’s re-appeal (A) the Plaintiffs re-claimed that the extinctive prescription of the right to recover trust property was interrupted upon the filing of the instant lawsuit by April 10, 2013 or the filing of the application for change of claim on September 17, 2014. (b) The grounds for the existence of the extinctive prescription system are to respect the permanent state of fact and not protect a locked person on the right. In particular, the latter is meaningful. As such, in a case where the right holder expressed that he is not a locked person on the right by asserting his right, the interruption of prescription becomes a cause for interrupting prescription. As such, a judicial claim as a cause for interrupting prescription is not limited to a request for the performance or confirmation of the right itself, but even in a case where a claim for confirmation of the basic legal relationship in which the said right occurred, if it can be deemed that the claim for confirmation of the legal relationship can be a means for the realization of the right arising therefrom, and thus, is not a locked person on the right, the claim is also included in the basic legal relationship (see Supreme Court en banc Decision 31393Da.

On the other hand, in a case where the part of the claim can be specified, the interruption of prescription becomes effective only when there is no effect of interrupting prescription for the remaining part, and when a lawsuit is filed with respect to the remaining part or a document expanding such claim is submitted to the court (see Supreme Court Decision 74Da1557 delivered on February 25, 1975).

(C) On the other hand, the plaintiffs asserted that the part of the trust proceeds should be returned to the plaintiffs since the plaintiffs received interest from the trust account in the complaint of this case and the interest is null and void. ① Article 38 of the former Trust Act stipulates the trustee's right to claim damages and the right to claim the recovery of trust property concurrently and does not distinguish both requirements. ② Article 43 of the current Trust Act does not specify the two. ② Article 43 of the current Trust Act provides that where the trustee is unable or considerably difficult to recover the trust property due to the trustee's breach of his/her duty, where excessive expenses are incurred in restitution, or where there are other special circumstances where reinstatement is inappropriate, it is possible to claim damages. ③ The grounds for the plaintiffs' right to claim damages and the right to claim the recovery of trust property are different from the expression, and ③ the grounds for the claim stated in the application for the alteration of the above claim are the same and is substantially the same.

However, the plaintiffs filed a claim with the limit of KRW 100,00,100 in the complaint of this case, and filed a claim with the extension of the claim and the remainder of the claim. Accordingly, in accordance with the above legal principles, the prescription period is interrupted only for the claim for the recovery of trust property of this case, and with respect to the remaining amount of the claim for the recovery of trust property, the prescription period is interrupted at the time of submission of the request for alteration of the above claim.

(3) Sub-decisions

Therefore, the Defendant’s defense of extinctive prescription is justified within the following scope of recognition (A). (b) The Defendant’s defense of extinctive prescription is reversely counted from April 10, 2013, which was the date of the instant lawsuit, and is 10 years later. < Amended by Act No. 6814, Apr. 4, 2003>

9. The Plaintiffs’ right to claim for the recovery of trust property was extinguished by prescription, as the transfer of each of the funds from Nos. 1. and 3. In 2002, the Plaintiffs’ right to claim for the recovery of trust property was extinguished by prescription.

(B) Of the instant lawsuit filed on April 10, 2013, the interruption of extinctive prescription took effect only for KRW 100,00,000, which is a part of the claim amount recorded in the complaint, due to the instant lawsuit filed on April 10, 2013. Accordingly, the Plaintiffs’ right to claim the recovery of trust property against KRW 1,291,00,038,707, excluding the total amount of the instant self-related funds 1,391,038,80, out of KRW 1,00,00,000,000, excluding the above KRW 1,00,00,000,000,000.

( 다 ) 2004년 이체금 : 이 사건 청구변경신청서의 제1심법원 제출일인 2014. 9. 17. 부터 역산하여 10년인 2004. 9. 16. 이전에 별지2. 중 순번 11. 내지 16. 의 각 이체금 ( 합계 795, 001, 348원 12 ) ) 의 이체가 이루어졌기에 이 중 자기자금 관련 이체금 부분에 관한 원고들의 신탁재산회복청구권은 시효로 소멸하였다. 반면 2004. 9. 16. 이후에 별지2. 중 순번 17. 내지 21. 의 각 이체금 ( 합계 727, 234, 233원 131 ) 의 이체가 이루어졌기에 이 중 자기자금 관련 이체금 부분에 관한 원고들의 신탁재산회복청구권에 관하여는 시효중단의 효력이 발생하였다. 따라서 2004년 자기자금 관련 이체금 합계 1, 494, 995, 888원 중 765, 107, 398원 [ = 1, 494, 995, 888원 × 795, 001, 348원 ︰ ( 795, 001, 348원 + 727, 234, 233원 ), 원 미만 버림 ] 에 관한 원고들의 신탁재산회복청구권은 시효로 소멸하였다고 봄이 상당하다 . ( 라 ) 2005년 ~ 2008년 이체금 : 이 부분 소멸시효는 이 사건 청구원인 변경신청서의 제출로 인하여 모두 시효가 중단되었다 .

4. Conclusion

Therefore, the defendant has the obligation to pay the trust account of this case to the defendant 1, 560, 5330 won ( = 2.b. 3, 876, 226, 501 won - 3. D. - 2, 315, 693, 1714) and its purport is to seek payment of the above money to the trust account of this case in light of the fact that the defendant's obligation to pay the above money to the defendant for the trust account of this case is reasonable to dispute over the existence and scope of the obligation to repay the above money from September 19, 2014 to the defendant, and that the defendant's obligation to pay damages to the trust account of this case is against the trust contract of this case as stipulated in the Act on Special Cases Concerning the Promotion of Legal Proceedings, etc. to the extent that the defendant's obligation to pay damages to the trust account of this case to the defendant for delay of its execution due to the defendant's obligation to pay damages to the trust account of this case.

Therefore, the plaintiffs' claims of this case are accepted within the scope of the above recognition, and the remaining claims are dismissed without merit. Since the judgment of the court of first instance is partially unfair with the conclusion, the judgment of the court of first instance is partially accepted, and it is decided to revise the judgment of the court of first instance as above. It is so decided as per Disposition.

Judges Lee Jong-hwan

Judges Lee Young-young

Claim for Return of Gains, Claim for Transfer of Ownership due to Termination of Trust, Claim for Payment of Cancellation Registration Procedures, Land

In the first instance, the lower court rendered a judgment against the Plaintiffs, but (Seoul Central District Court) declared against the Plaintiffs in its entirety.

On September 1, 2011, 201, the Appellate Court Decision 2010Gahap53612 decided September 1, 201, hereinafter referred to as "the first instance judgment in the relevant case").

In the sale-type land concluded on October 13, 2002 between the plaintiffs and the defendant, "1,166, 934, and 932 won."

Seoul High Court (Seoul High Court 2001) rendered a judgment of winning part of the plaintiffs as trust property in trust contract.

May 23, 2013, Supreme Court Decision 201148334 decided May 23, 2013, hereinafter referred to as the "Appellate Court Decision of the related case"). The plaintiffs and the defendant's mother

Two appeals are pending in the Supreme Court (Supreme Court Decision 2013Da47651).

2) The proviso of Article 31(1) of the Trust Act shall not apply to trust companies.

3) However, the court's permission where it is apparent that interest is to the beneficiary or there is any other justifiable reason.

the trust property may become its proprietary property with the acquisition of such trust property.

4) Article 31 (Restriction on the Acquisition of Right by Trustee) (1) A trustee shall own property of the trust property, no matter whose name the trustee is named.

to the beneficiary, unless it is apparent that the beneficiary has a interest in such transaction;

or if there is any other justifiable reason, the trust property may be converted into its own property with the permission of the court.

(2).

5) Loss of, or decrease in, the trust property, due to the trustee’s failure to properly manage the property, Article 38 (Liability to Compensate for Damages by the Trustee)

(2) If the trust property is disposed of in contravention of the principal

The consignor, his heir, beneficiary, and other trustee shall be liable to the trustee for damages or to the trust property

may demand uniform.

6) The sum of the amounts stated in the column of “annual total of the transferred money” column 1. Attached Form 1.

7) The aggregate of the amounts stated in the column of “annual total of the transfers related to external loans” as shown in Appendix 1.

8) Attached 1. The sum of the annual amounts of transfers related to one’s own funds listed in the column.

9) Article 688 (Mandatary's Right to Demand Reimbursement of Expenses, etc.) (1) Expenditure of expenses incurred by the mandatary in the management of the entrusted affairs

(2) If such payment has been made, interest may be claimed against the mandator after the date of payment.

10) Article 55 (Right to Claim Legal Interest) (1) In case where a merchant lends money to him/her in connection with his/her business, legal interest shall accrue.

(2) If a merchant has made a payment in subrogation of another person within the scope of his/her business, the merchant shall not make such request.

legal interest may be claimed after the date of receipt.

11) Article 162 (Extinctive Prescription of Claim or Property Right) (1) Where a claim is not exercised within ten years, the extinctive prescription of the claim shall expire.

12) = 11. 289, 272, 59 won + 12.65, 375, 339 won + 13.78, 317, 532 won + 14.

104,042,462 + 15.149,406,572 + 16.108,586,844 won

13) Serials = 138, 590, 408 won + 18.186, 426, 024 won + 207, 287, 669 won + 20

1, 328, 766 won + 21.193, 601

14) = 259, 547, 066 won in 2002 + 1,291, 038, 707 won in 203 + 765, 107, 398 won in 2004.

15) Article 3 (Statutory Interest Rate) (1) Judgment ordering performance of all or part of a pecuniary obligation (including adjudication. This includes adjudication.

(2) In the event of a determination of damages due to default of monetary obligations, the statutory interest rate which is the basis for calculating damages due to default.

the date on which the complaint or equivalent document was served on the debtor for the discharge of the pecuniary obligation; and

The interest rate on arrears applied by banks under the Banking Act within the extent of 40/100 per annum from the date of sound;

The interest rate prescribed by Presidential Decree in consideration of economic conditions, such as the former: Provided, That Article 251 of the Civil Procedure Act shall apply.

this paragraph shall not apply to an action prescribed in

16) This Act prevents the delay of litigation, facilitate the prompt realization of rights and obligations of citizens, and facilitate the settlement of disputes.

the purpose of this chapter is to gather.