Nonparty 2 in bankruptcy, the administrator of the rehabilitation debtor treatment-related development corporation, Nonparty 1’s taking over the lawsuit, Nonparty 2 in bankruptcy

As shown in the attached Form (Law Firm LLC et al., Counsel for the defendant-appellant)

March 11, 2015

1. The Seoul Central District Court shall authorize the final claim inspection judgment of 2011 P.C. 1363 dated March 7, 2013.

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

The Seoul Central District Court Decision 2011 Ma1363 dated March 7, 2013 shall revoke the final claim inspection judgment. It shall be confirmed that the defendants' bankruptcy claims against the bankrupt treatment and development corporation do not exist.

1. Basic facts

A. Status of the parties

1) The Daewoo Motor Vehicle Sales Co., Ltd. is a contractor who newly built Do○○○ apartment (hereinafter “instant apartment”) in Ulsan-gu, Ulsan-gu. On August 10, 201, the Seoul Central District Court decided to commence rehabilitation procedures on December 19, 201, and divided it into Daewoo Motor Sales Co., Ltd., Treatment Industry Development Co., Ltd., Medical Service Development Co., Ltd. (including the instant new apartment construction work sector, and any other sector, divided companies, etc.) in accordance with the rehabilitation plan approval on December 19, 201. The aforementioned decision was finalized on July 23, 2014, on the ground that it was clearly impossible to implement the rehabilitation plan on July 23, 2014 during the said rehabilitation procedure. On the same day, Song-do Development Co., Ltd. was declared bankrupt by the Seoul Central District Court in Seoul Central District Court by dividing it into 2014Hado Development Co., Ltd. (hereinafter “Bongdo Development Co., Ltd.”).

3) The Plaintiff was appointed as the bankruptcy trustee of the bankrupt company in the above bankruptcy procedure, and taken over the instant lawsuit from Nonparty 1 to the administrator of the above rehabilitation procedure, and the Defendants are the occupants who moved in the instant apartment.

B. The instant apartment contract and sales contract

1) On November 2005, 158,352,232,500 won was determined and entered into a construction contract with the bankrupt company to newly construct the instant apartment (the construction price was changed to KRW 166,690,232,50,000, and was additionally increased in KRW 6,597,580,00).

2) On June 2006, ELsi Construction: (a) sold the instant apartment on or around 2006; (b) the instant apartment supply contract written by ELsi Construction Co., Ltd. with the Defendants is indicated as “A (seller), ELsi General Construction, B (Buyer) and ○○○○○○; and (c) on the next, the Defendants indicated the “City Construction and Treatment Automobile Sales Co., Ltd.,” and (d) the Korea Exchange Bank account in the name of the bankrupt company as the account to deposit the sales price. Moreover, the down payment receipt received by the buyers is also written in the name of the bankrupt company, and the rubber of the bankrupt company’s name is affixed, and the sales payment guidance sent to buyers is also indicated in the name of the bankrupt company.

C. Agreement on January 17, 201 between the ELD Construction and the bankrupt company and the bankrupt company and the person who refused to move in.

1) A bankrupt company completed the new construction of the instant apartment around March 2010, and around that time, the occupancy began. The Defendants paid the sale price under the sales contract and occupied the instant apartment, but some buyers rejected the occupancy by asserting the defective construction and the discount of the sale price.

2) In order to promote occupancy, the ELAD and the bankrupt company agreed on the reduction or exemption of interest on loans from intermediate payments and intermediate payments. As a result, on January 17, 2011, the ELAD and the bankrupt company agreed on the reduction or exemption of interest on the intermediate payments to be made by the occupants, and on January 17, 201, the bankrupt company bears the interest on the intermediate payments to be made by the occupants, discount by 10%, and the refusal to move into the ELAD Construction and the bankrupt company may not have any civil and criminal

(d) a commitment to reducing or exempting interest on anti-reven and part payments by occupants, including the Defendants;

1) The occupants of the instant apartment including the Defendants (hereinafter referred to as “non-performance of occupants”) demanded the committee to organize an occupant’s emergency countermeasures (hereinafter referred to as “non-performance of occupants”) to treat the same as the refused occupants, and on September 10, 2010, a notice of “household occupancy notice” was posted to the law firm designated by the project undertaker, stating that “I will submit to the law firm designated by the project undertaker the withdrawal sources of civil and criminal litigation related to the instant apartment before the full payment of the purchase price.”

2) On December 3, 2010, the phrase “I, in the name of the representative director of the ELD General Construction and the bankrupt company (the bankrupt company (main/construction company)”, promised I, in the name of each representative director, to the effect that “I,” with respect to the loan interest and reduction benefit of intermediate payment to the non-occupant household, promise I will be applied retroactively to the same benefit in the construction.”

(e) Notice of January 21, 201 and content-certified mail, etc. of February 11, 2011;

1) On January 21, 2011, the notice of “the instant notice” (hereinafter referred to as “instant notice”) was sent to the occupants and occupants in the name of the Do governor Do governor Do governor Do governor Do governor Do governor Do governor Do governor and the bankrupt company (the bankrupt company (State/construction company) and the bankrupt company) as follows:

As a measure to promote occupancy, the implementation/City project will undertake a 10% discount of interest on loans from intermediate payments, reduction of interest, and sales amount: Provided, That in the case of a new household that has moved in, it is expected that such benefit will be applied retroactively when it has not been immediately set off the high seas and reached a certain level of occupancy rate. The schedule of refund according to the occupancy rate shall be known to the following:

The amount equivalent to 50% of the amount by 30% (the first minute) of the occupancy rate by 30% (the first minute) of the amount by 55% of the occupancy rate by 30% ( the first minute) of the amount by 40% ( the first minute) of the total amount by 70% of the occupancy rate by 30% ( the first minute) of the amount by 70% of the total amount by 30% ( the first minute) occupancy rate by 30% of the total amount by 30% ( the first minute) occupancy rate by 80% of the amount by 30% of the total amount by 30% ( the first minute) occupancy

2) On February 11, 2011, the occupant’s non-Subrogation sent the content-certified mail containing the following six requests (hereinafter “instant content-certified mail”) to the ELD General Construction and the bankrupt Company based on each of the instant notifications to the ELD General Construction and the bankrupt Company and the ELD Company’s reimbursement agreement.

The “occupant rate” stated in the notice of this case as the time of refund shall be applied to “the remaining payment rate or the occupancy rate,” whichever is earlier. 2. The payment of the intermediate payment loan interest and the refund amount at 10% discount shall be finally determined, calculated, and indicated by each household, and notified to each household and emergency countermeasures committee en bloc. 3. The part of the intermediate payment loan/part-time cash payment households shall be applied to the intermediate payment loan/part-time cash payment households, and the payment of the cash payment shall be made by adding up interest-free, and the amount of the cash payment shall be made by applying 5% refund. 4. The application of the remaining overdue interest shall be reduced to the prospective residents and the current status of the remainder payment and occupancy rate on May, 1, 200, by emergency notification to the Countermeasure Committee at least three days after the terms and conditions of each household are established.

3) On February 23, 2011, ELD Construction responded to the content-certified mail of this case in subrogation by occupants based on the balance payment rate for the time when 10% of the loan interest and the sales amount are refunded. As to the balance between the loan interest of part payments and the refund amount of the part payments and the overdue interest interest, the ELDD General Construction and the bankrupt company, which is the contractor, sent a reply to the notification to the occupant's non-Subrogation as determined by the agreement between the ELD General Construction and the bankrupt company.

(f) Payment of intermediate payments to occupants and the first installment of payments;

1) Meanwhile, in the process of the execution of the instant apartment, the ELD Construction entered into a real estate security trust agreement with the first beneficiary company as the Korea Exchange Bank (China Bank), and the second beneficiary as the bankrupt company. Accordingly, the above trust company managed the sales price of the instant apartment. In order for the ELD comprehensive construction to withdraw the sales price from the above trust company and use it, it is necessary to obtain the consent of the representative of the lender group and the bankrupt company as the contractor.

2) On March 201, 201, as the remaining payment rate of the instant apartment exceeds 50%, the ELD General Construction prepared a written request for payment of intermediate payment loan and the first refund to occupants, and requested the payment of funds to the Luxembourg Trust with the seal of the representative director of the bankrupt company and the representative of the lender who is the contractor. On March 23, 2011, the said trust company paid the intermediate payment loan and the first refund to occupants including the Defendants (including the Defendants, a written request for payment was made on March 29, 2011 and the first refund was made in the same manner as above).

(g) Unexecutions, such as interest on part payments loans, second and third refunds;

1) However, despite the fulfillment of the payment requirements for the second and third repayment interest on part payments, the said repayment was not made. On June 7, 2011, an occupant non-Subrogation sent a letter-certified mail demanding that “The remainder payment rate or occupancy rate of the instant apartment was reached at 50% as part of the occupancy promotion measure, and the intermediate payment interest and the sale rate on six occasions until 80% reaches 50%.” On May 201, 201, the intermediate payment interest and the sale rate of the instant apartment was 10% as part of the occupancy promotion measure. However, even if the remainder payment rate exceeds 55%, it did not pay 30% of the second-minute refund.”

2) On June 23, 2011, occupant non-Subrogation sent to the bankrupt company the content-certified mail stating that “The bankrupt company sent to the bankrupt company a notice to pay 70% of the outstanding payment rate or occupancy rate of the instant apartment on six occasions from the date when the bankrupt company reached 50% to the date when 80% of the outstanding payment rate or occupancy rate of the instant apartment was reached, and 10% of the intermediate payment interest and sale rate was refunded. On June 20, 2011, the remainder payment rate exceeds 60%.”

3) On June 27, 2011, 121, an occupant, including some Defendants, filed an application for a payment order with the Ulsan District Court 201j3281, claiming the payment of the intermediate payment interest 2 and 3rd refund interest on the intermediate payment loan interest on the EL City Construction and the bankrupt company. However, in the Ulsan District Court 201Ga5451, the above court rendered a favorable judgment on September 12, 2013 on the premise that there was an agreement on the refund of the interest on intermediate payment loan and the amount equivalent to 10% of the sales price between the EL City Construction and the bankrupt company and the occupant company and the bankrupt company and the bankrupt company, the above court rendered a judgment in favor of the Plaintiff on the premise that there was an agreement on the refund of the amount equivalent to 10% of the interest on intermediate payment loan and the sales price among the bankrupt company and the bankrupt company and the bankrupt company under the above agreement (the lawsuit against the bankrupt company was modified to the rehabilitation claim confirmation lawsuit against the bankrupt company).

(h) Final claim inspection judgment on the bankrupt company;

1) Under the rehabilitation procedure of Seoul Central District Court 201 Ma105, the Defendants reported 70% interest on the instant apartment payment loan and the refund claim amounting to 10% of the sales price as rehabilitation claims (for the Defendants, the Defendants filed a lawsuit against the 70% interest on the intermediate payment loan interest, the Defendants filed an objection to the refund claim amounting to 10% of the sales price as rehabilitation claims against the ELsi General Construction and the bankrupt companies under the Ulsan District Court 201 Ma5451, Ulsan District Court 201.

2) The Defendants filed an application for the final claim inspection judgment with Seoul Central District Court Decision 201Ma1363, and this Court decided on March 7, 2013 that the Defendants’ rehabilitation claims for the Defendants’ treatment delivery and development are each the amounts indicated in the column for the cited amount by each Defendant, and thereafter, the Defendants filed a report on the claims cited in the final claim inspection judgment with the Seoul Central District Court Decision 2014Hau132 bankruptcy proceedings.

(i) Contracts for the purchase-type sales agency between ELD Construction and ELDC Co., Ltd.

1) On January 8, 2013, ELD Construction entered into a purchase-type sales agency agreement on unsold apartments, officetels, and commercial buildings among the instant apartment units, and entered into a contract on the purchase-type sales agency agreement for the instant apartment units among the apartment units. The contract states that “ELDC shall carry out the matters agreed upon with the non-Subrogation of the occupants of the instant apartment units (Seoul Central District Court 201.1363, 1363, and 201.51, Ulsan District Court 201.51) after the settlement of the sales agency fees, and all civil petitions and all liabilities arising from non-performance of the contract shall be borne by ELDD (Article 13 subparag. 7). At that time, the bankrupt company participated in the contract and affixed its seal on the contract as the contractor.

2) As of the date of closing argument of the instant case, the remainder payment rate of 80% was set at 80%, and the requirements for refund of 10% of the interest on the intermediate payment loan and the sales price prescribed in

[Ground of recognition] The fact that Eul has no dispute, Eul's evidence Nos. 1 through 4, Eul's evidence Nos. 6, 7, 8, Eul's evidence Nos. 1 through 6, Eul's evidence Nos. 1 through 6, Eul's evidence No. 8 through 15, Eul's part of Eul's evidence No. 5, and the purport of the whole pleadings

2. The assertion and judgment

A. The plaintiff's assertion

The notice of this case is unilaterally sent by ELsi Construction without the consent of the bankrupt company, and the bankrupt company consented to the dispatch of the above notice or did not grant the power of representation to EL City Construction. In addition, the notice of this case does not aim at any legal effect or not at any legal effect, and it does not constitute the subject of rights and obligations under the Civil Act, which makes it possible to receive an expression of intent. Therefore, it cannot be said that there was a refund agreement between the bankrupt company and the Defendants that the bankrupt company and the Defendants would refund the amount equivalent to 10% of the intermediate payment interest and the sales price to the Defendants. Accordingly, there is no claim for refund by the Defendants.

B. Determination

1) Determination as to whether the instant notice was sent without the consent of the bankrupt company

In addition to the status of the bankrupt company in the apartment sale contract in the following circumstances revealed by the evidence revealed above, it is reasonable to view that the notice of this case was sent in the joint name after the ELD General Construction and the bankrupt company decided to refund 10% of the intermediate payment loan interest and the sales price to the defendants who are occupants through consultation with the bankrupt company.

① The instant notice is the sender’s “Treatment Motor Vehicle Sales (ju/Construction)”, and the lower part of the document indicated as “Treatment Board/Construction (ju/Construction), the representative director in the construction sector, and the representative director in El City Construction.” On the other hand, the rubber seal of the bankrupt company is affixed to the instant notice. In addition, the notice of September 10, 2010 and December 3, 2010 on the front of the instant notice was also posted or sent to the occupants in the instant apartment in the name of the bankrupt company.

② The representative director of the bankrupt company affixed the seal on the request for the execution of the funds prepared by the ELD Construction to pay the first refund interest of intermediate payment to the occupants. The said first refund was normally paid.

③ On June 23, 2011, an occupant urged the bankrupt company to pay an intermediate payment loan interest at the second and third minutes by content-certified mail, and the bankrupt company did not raise any objection, such as the bankrupt company did not receive the said content-certified mail and have no obligation to refund.

④ In the instant notice and the reply of February 23, 2011, the issue of refund of interest on intermediate payments, etc. was determined through consultation between the ELD General Construction, the executor company, and the bankrupt company, the contractor, and the bankrupt company, which is the contractor, clearly stated that the subject of refund is the executor company and the bankrupt company which is the contractor.

⑤ Nonparty 3, the vice president at the time of the ELS General Construction, testified to the effect that, in the examination of the case of the Busan High Court 2013Na9307, “each notice sent to the Defendant was sent to the Defendant through consultation with the bankrupt company, which is the corporation of the bankrupt, and each notice was signed and sealed by the rubber rather than the corporate seal of the bankrupt company, and it was inevitable for the bankrupt company to obtain approval of the representative director because it was in a situation where it was impossible for the bankrupt company to obtain approval of the representative director.”

6. On January 17, 2011, the bankrupt company agreed to exempt those who refuse to move in from the interest on the intermediate payment and the interest on the intermediate payment, and discount 10% of the sales price.

7) The purchase-type sales agency contract prepared by ELD Construction Co., Ltd. and ELDC Co., Ltd. includes the content that the contract is to implement the matters agreed upon with the occupant's non-payment after the settlement of the purchase-type sales agency fee (Seoul Central District Court 2011da1363, Ulsan District Court 201Gahap5451). The bankrupt company also affixed the seal on the sales agency contract.

2) Determination on the remainder of the Plaintiff’s assertion

The instant notice includes not only the refund of interest on intermediate payments, but also the refund of the amount equivalent to 10% of the sales price, as presented in the notice of September 10, 2010 and December 3, 2010, and also the refund of the amount equivalent to 10% of the sales price. It is reasonable to view that the notice of this case includes the essential and important matters of the refund agreement, such as specific requirements for refund and the refund schedule, and is not merely a simple notice, but also the expression of intent

In addition, even if based on the statement of the instant notice, the addressee of the instant notice is not only the “non-Subrogation of occupants and occupants of the instant apartment,” but also the “non-Subrogation of occupants” is also a group comprised of occupants of the instant apartment, including the Defendants. Therefore, it is reasonable to deem that the declaration of intent to make a refund agreement by the EL City Construction and the bankrupt company’s instant notice was received by the Defendants, who are the occupants of the instant apartment

3) Refund agreement between the ELI Construction and the bankrupt company and the Defendants

As seen earlier, ELS General Construction sent the notice of this case to the bankrupt company and to the occupants including the Defendants at the time of refunding the amount equivalent to 10% of the interest on loans from intermediate payments and the amount of the sales price. For this reason, the occupant's non-Subrogation was consented to the above refund itself, but the tenant requested the refund on the basis of the usage rate and the rate of the remainder payment, whichever comes earlier. ELS General Construction confirmed that the time of the refund was determined on the basis of the remainder payment rate of the tenant's non-Subrogation, and that the repayment rate was determined on the basis of the remainder payment rate of the tenant's non-Subrogation. Through the above series of processes, ELS General Construction and the bankrupt company and the Defendants agreed to make an express or implied declaration of intent that the amount equivalent to 10% of the intermediate payment interest and the sales price was paid to the Defendants in six installmentss on the basis of the remainder payment rate.

Therefore, according to the above refund agreement, the defendants have a refund claim amounting to 10% of the interest on an intermediate payment loan and the sales price against the bankrupt company.

3. Conclusion

Therefore, the plaintiff's assertion is without merit, and it is so decided as per Disposition with the approval of the final claim inspection judgment of this case.

(attached Form omitted)

Judges Rathere Co., Ltd. (Presiding Judge)