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

3. No application for change of a claim filed by the Plaintiff from the trial to April 24, 2017 is permitted.

(a) Status of parties;

1) The defendant is a company with the purpose of acting as an agent for the business of trust and the acquisition, management, disposal, etc. of property under the Trust Act.

2) Acheon-si Construction Co., Ltd. (formerly: Yangyang Construction Industry Co., Ltd.; hereinafter “Acheon-si Construction”) is a construction company and a construction company of the ○○○○○○○○○ Complex Apartment apartment on the fourth parcel of land (hereinafter “instant apartment”).

(b) Conclusion, etc. of business agreements and real estate security trust contracts;

1) On March 27, 2008, Acheon Construction, the Defendant, and the Korea Mutual Savings Bank (hereinafter referred to as the “Korea Mutual Savings Bank”) concluded a business agreement with a company and a contractor and a borrower, the Defendant as a fund manager, and the Korea Mutual Savings Bank as a lending financial institution (hereinafter referred to as the “instant business agreement”).

Article 18 (Breadon Loan)

(2) Where a bank in charge of part payments loans executes part payments loans to buyers, a mortgage shall be established in order to take the first priority of a Bank in dealing with part payments loans against land and buildings at the time of registration for preservation or transfer of ownership after completion.

Article 19 (Management of Funds)

(1) All revenues related to the target project, such as the principal of a loan, proceeds from sale in lots or rent, overdue charges of purchasers, interest income of financial institutions, etc., and refund money on taxes and public charges, shall be deposited into the fund management account opened in the name of the defendant.

(2) The disbursement of all project costs excluding construction costs, out of the revenues deposited in the Fund Management Account after the commencement of this project shall be executed by the defendant on the written request of the Korean Mutual Savings Bank in writing after obtaining written confirmation from the Korean Mutual Savings Bank.

Article 20 (Order of Execution of Funds in Fund Management Accounts)

(3) In cases of Acheon Construction, Acheon Construction, if it is claimed for essential expenses (service charges, sales agency fees, etc.), he/she shall submit to the defendant the ground for application for the requested amount (a contract, tax invoice, contract party's claim, etc.), and the defendant may pay it directly to the contracting company or the payer of Acheon Construction, Acheon Construction, as the ground for

Article 22 (Settlement of Business Accounts)

(2) The defendant and the Korea Mutual Savings Bank shall not be fully responsible for any profit or loss incurred after the settlement of the project, and the ASEAN shall have rights and obligations with respect to any profit or loss incurred in the settlement of accounts.

Article 23 (Representative Affairs and Trust Contracts)

The Acheon Construction and the defendant will conclude a security trust (or disposal trust) contract and an agent contract (hereinafter referred to as the "agency contract") in addition to this agreement.

Article 24 (Reversion of Rights and Obligations and Certification of Power of Representation)

1. The legal effect of the Defendant’s act on behalf of the Acheon Construction in accordance with this Agreement and the Agency Agreement belongs to the Acheon Construction, and the Acheon Construction does not claim the Defendant’s right or claim its performance.

Article 32 (Modification, etc.)

(1) Any modification to this Agreement shall be made in writing with the consent of all the parties concerned.

2. In the event that either party concludes or amends a contract related to the business in this Agreement with a third party, the consent of all the parties thereto shall be required. Any contract without such consent shall be deemed not to have been concluded under this Agreement.

2) On November 19, 2008, the Acheon Construction, the Defendant, the Korea Mutual Savings Bank, and the Yangyang Logistics Co., Ltd. (hereinafter “Syang”) added the terms of the instant business agreement to the lending financial institution, and entered into the following additional agreements on November 19, 2008: (a) changes in the trust registration, the management of funds, and the order of funding execution (hereinafter “instant additional agreements”).

Article 4 (Trust Registration)

(3) No person shall request the disposal of the realization of trusted real estate pursuant to a real estate security trust contract before obtaining the written consent of the beneficiary of priority in priority in relation to the trusted real estate, and the third-party logistics consent thereto.

Article 5 (Management of Funds)

The expenditure of all the project costs related to the Project shall be executed by applying Article 19 of the Project Agreement and Article 15 of the Additional Arrangements, and the request and consent for the goods distribution shall be omitted, and the goods distribution shall be consented thereto: Provided, That after all the claims of the Korea Mutual Savings Bank have been repaid, the unpaid construction costs and proceeds from the Project shall be executed by obtaining the written consent of the goods distribution.

Article 6 (Order of Execution of Funds in Fund Management Accounts)

(A) Table A included in the main sentence of this project. 1) 1: 1: Taxes and public charges; Defendant's trust disposal expenses and trust fees 2); 2: design and supervision expenses; advertising promotion expenses; sales expenses; and loan interest 3: interest on loans of a Korean mutual savings bank to Acheon Construction; 4); 4: In the case of Acheon Construction; 4: in the case of a Korean mutual savings bank to Acheon Construction; 4: in the case of a divided repayment of the principal of loans and construction expenses (as for loans and construction expenses, the ratio of 4:6: 5,000,000,000,000 or more, and in the case of construction expenses (as for loans and construction expenses, the ratio of 5:6:5,000,000,000,000 or more, the amount of loan and construction expenses): 67:5,000,000,0000 won, and the amount of loan and construction expenses that are essential for Acheon Construction: 67:5,07:6,06,006.

3) On November 28, 2008, the Defendant entered into a real estate security trust agreement with the truster, the defendant, the trustee, the Korea Mutual Savings Bank, the first priority beneficiary, the second priority beneficiary, and the second priority beneficiary with respect to the Acheon Construction and the instant apartment (hereinafter “instant trust agreement”).

Article 2 (Trust Period)

(2) Where a trust real estate is disposed of at the request of priority beneficiaries before the trust period under paragraph (1) expires, this trust contract shall be deemed terminated when the registration of ownership transfer is completed.

Article 4 ( Original of Trust)

The original of a trust shall be the profits accrued from the management of money belonging to the trust property, such as the property acquired by the trust real estate or by subrogation thereof, the disposal price of the trusted real estate, and penalty generated in connection with the disposal procedure, and other corresponding

Article 17 (Time for Disposal of Real Estate in Trust)

(1) In cases falling under any of the following subparagraphs, trust real estate may be disposed of at the request of the priority beneficiary, even if the period of trust expires (not falling under each subparagraph shall be omitted):

Article 18 (Method of Disposal)

(1) In principle, disposal through competition in the open market shall be conducted: Provided, That in the event of an inspection, a negotiated contract may be concluded under the conditions immediately before the next disposal date is publicly announced.

Article 21 (Settlement of Proceeds from Disposal, etc.)

(1) The order of priority in cases where the defendant liquidates and adjusts the trusted real estate shall be as follows:

1. Expenses and remuneration related to the trust deed;

C. Conclusion, etc. of a sales contract between Acheonyang Construction and Non-Party 1 (Non-Party)

1) On October 20, 2008, Acheon Construction sold the instant apartment △△△△△ Group to Nonparty 1 for the sale price of KRW 246,680,000 (hereinafter “instant sales contract”).

2) On December 31, 2010, Acheon Construction was under bankruptcy proceedings after having been declared bankrupt by the Jung-gu District Court No. 2010Hahap8 on December 31, 2010. The Plaintiff submitted a claim registration statement to the above court on March 17, 201.

3) On May 3, 2011, Gyeyang Logistics acquired the claim for loans from the Korea Mutual Savings Bank for Acheon Construction, the preferential right under the instant trust agreement, and the status of the instant business agreement.

D. The plaintiff's seizure and collection order, etc.

1) On October 27, 2008, the Plaintiff loaned KRW 98,672,00 as a housing loan to Nonparty 1. Afterwardly, on October 29, 2014, the Plaintiff rendered a judgment that “Nonindicted 1 shall pay to the Plaintiff 172,830,080 won and interest rate of KRW 18% per annum for KRW 98,672,000 from June 25, 2014 to the day of full payment” (Seoul Central District Court 2014Da143578).

2) On January 8, 2016, based on the foregoing final judgment, the Plaintiff obtained the claim attachment and collection order (the Suwon District Court 2016TTTTT 191; hereinafter “the instant collection order”) against “200,045,291 won out of the claim for the refund of the sale price, where the sale contract was cancelled, as acquisition of the right to sell the apartment of this case △△△△△△△△, which was sold by the Defendant by Nonparty 1, and the said collection order was served on the Defendant on January 13, 2016.

E. Re-sale of the instant apartment △△△△△

On April 17, 2015, the Defendant completed the registration of ownership transfer with respect to the instant apartment △△△△△, and completed the registration of ownership transfer for Nonparty 2 on the same day to Nonparty 2 on March 20, 2015.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 4, Eul evidence Nos. 7 through 11, 14, and 16 (including provisional number; hereinafter the same shall apply), the purport of the whole pleadings

2. Judgment on the plaintiff's assertion

A. The plaintiff's assertion

For the following reasons, Nonparty 1 has a claim for return of trust property, a claim for return of sale price, and a claim for return of unjust enrichment against the Defendant. Since each of the above claims and the claims for seizure under the collection order of this case are identical in nature or cause thereof, the Defendant, the collection obligee, is obligated to pay the Plaintiff, as the collection obligee, the money stated in the claim, such as return of trust property

1) Nonparty 1 is the buyer who purchased the instant apartment △△△△△△△△△ from the Acheon Construction. The instant apartment △△△△△△△ was sold again to a third party, and this constitutes “a case where the trust real estate was disposed of before the termination of the trust period” under Article 2(2) of the instant trust agreement, and thus, the trust contract on the said apartment was terminated. Accordingly, Nonparty 1, as the buyer, has the right to return the trust property to the Defendant, the trustee, on the ground that the trust contract was terminated in part.

2) As above, the sales contract in this case was cancelled implicitly or at least at the time of delivery of the copy of the complaint of this case due to the re-sale of the apartment house △△△△△△△, and thus, if the trust contract in this case is settled accordingly, the obligation to return the sale price to the buyer constitutes either the “expenses related to the trust contract” as stipulated in Article 21(1)1 of the trust contract of this case or the “expenses related to the instant additional agreement” as stipulated in Article 6 of the instant additional agreement and Article 20(1)1 of the instant additional agreement, or the obligation to settle it in the prior order.

In addition, the Acheon Construction, the truster of the instant trust contract, changed the order of funding execution under Article 20(1) of the instant business agreement with the permission of the court after receiving the decision on commencing rehabilitation procedures, and the Defendant impliedly consented to the change in the order of execution.

Thus, the defendant is obligated to return the sales price paid by the non-party 1 to the non-party 1 due to the cancellation of the sales contract in this case.

3) Of Article 20(1) of the instant business agreement, matters related to the rights and obligations of the buyer and buyer are a contract for a third party with the purport of imposing the obligation to execute funds on the buyer and buyer who are the third party. Also, the “expenses for trust treatment” under the said provision includes expenses for settlement in cases where the subject matter of trust is disposed of by re-sale method, and the pre-sale contract is cancelled due to the cancellation of the pre-sale contract. Furthermore, in lieu of Nonparty 1, the Plaintiff expressed his intent to make profits to the Defendant on behalf of Nonparty 1, the non-party 1 may directly file a claim for the return of the sale price against the Defendant. Meanwhile, the “expenses for trust treatment” under the said provision also constitutes “right arising in the course of performing trust affairs” under the proviso of Article 22(1) of the Trust Act, and thus, the trustee is obligated to pay such

4) Even if the Defendant’s holding of the sales price paid by the buyer in relation to Acheon Construction, even if there are legal grounds, the holding of the sales price as it is in relation to Nonparty 1, the buyer, as it is, ought to be deemed that there is no legal ground against the concept of fairness and justice. Therefore, the Defendant is liable to return unjust enrichment equivalent to the sales price to Nonparty 1.

B. Determination

1) The ground for the Plaintiff’s claim seems to be premised on the fact that the trust contract and the business agreement in this case directly extend to Nonparty 1. However, it is clear that the trust contract and the business agreement in this case were concluded between Acheon Construction and the Defendant, etc., and in light of the language, structure, purport, etc. of the relevant provisions, Article 21(1) of the trust contract in this case and Article 20(1) of the business agreement in this case merely determined the trustee’s liability for expenses incurred in the trust business or determined the order of payment, method, procedure, etc. of expenses. Therefore, the provisions cited by the Plaintiff cannot be interpreted as having a third party, other than the parties to the trust contract in this case, etc. in this case, for the purpose of acquiring any right against the Defendant, who is the trustee. On other premise, the Plaintiff’s claim in this other premise is without merit (Supreme Court Decision 2008Da19034 Decided July 8, 2009, which presented by the Plaintiff, it appears that it is inappropriate for the trustee’s claim to refund of the sale proceeds and the sale price.

2) Furthermore, solely on the circumstances cited by the Plaintiff, the failure of the Defendant to return the sales price that Nonparty 1 paid to Nonparty 1 to Nonparty 1 is obviously contrary to the concept of fairness and justice in relation to Nonparty 1. The Plaintiff’s assertion on this part is without merit.

C. Sub-committee

Therefore, since there is no claim subject to the seizure order of this case, the plaintiff's claim of this case is without merit.

3. Determination as to the application for modification

A. The parties' assertion

1) Plaintiff

According to Article 18(2) of the instant business agreement, the Defendant, who is a party to the said business agreement, agreed to pay the Plaintiff the obligation to compensate for the loans, which is the intermediate payment loan, and this includes that, in the event the sales contract is cancelled, the said loan against the Plaintiff is repaid with the sales price paid by the buyer. However, the Defendant refused to return the intermediate payment to the Plaintiff, a bank dealing with intermediate payment, despite the cancellation of the instant sales contract. As such, the Defendant is refusing to return the intermediate payment to the Plaintiff, which

2) Defendant

It is not permissible to add the Plaintiff’s above claim for damages against the Defendant as a separate cause of claim because it is not recognized as identical to the claim for collection of this case.

B. Determination

The alteration of a claim may be made within the extent that the basis of the claim is not altered, unless it substantially delays the proceedings (Article 262(1) of the Civil Procedure Act), and when the court deems that the alteration of the purport or cause of the claim is not correct, it shall make a decision not to permit the alteration ex officio or upon the other party’s request (Article 263 of the Civil Procedure Act).

In the instant case, the Plaintiff filed a claim for the collection of the claim against Nonparty 1 for the claim that was initially issued the instant collection order regarding the claim for the refund of the sale price claim against the Defendant, but the Plaintiff filed a preliminary claim for the modification of the claim, which would cause damage to the Plaintiff, by the statement in the preparatory brief dated April 24, 2017, in the first instance.

However, the above causes of a claim added in the trial are based on facts different from those of the existing causes of a claim for collection, and its legal composition is entirely different, and the facts that form the basis of the legal relationship are changed, and it cannot be deemed as having the identity of the basis of the claim.

Therefore, the plaintiff's request for change of claim is not permissible.

4. Conclusion

Therefore, the plaintiff's claim of this case shall be dismissed as it is without merit. Since the judgment of the court of first instance is just in conclusion, the plaintiff's appeal is dismissed, and the plaintiff's application for change of claim at the court of first instance is illegal and not permitted. It is so decided as per Disposition.

Judges Kim Jong-ho (Presiding Judge)