208Gadan98750 Deposits

Manager of 00 Construction Co., Ltd. 00

Sung-nam City Subdivision-gu

Law Firm 00

[Defendant-Appellee]

00 Banks, Inc.

Seongbuk-gu Seoul

Representative Director Kim00

Law Firm 00

Attorney Kim Do-young, Counsel for the plaintiff-appellant

April 29, 2009

July 8, 2009

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit are assessed against the Plaintiff.

The defendant shall pay to the plaintiff 6, 624, 373 won with 6% interest per annum from October 23, 2007 to the date of sending a copy of the complaint of this case, and 20% interest per annum from the next day to the date of complete payment.

1. Basic facts

A. A. 00 Construction Co., Ltd. (hereinafter referred to as a rehabilitation company) was a corporation that had engaged in housing construction and lease business, etc., and the rehabilitation procedure was commenced around September 12, 2007 by Jeonju District Court 2007hap0, and the Plaintiff was appointed as a custodian of the rehabilitation company on the same day.

B. On May 2005, the rehabilitation company constructed a rental apartment with a total of 446 households of 000 households on the ground of the land located in the Ganpo-si Kimpo-si, Kimpo-si.

C. On July 28, 2005, the rehabilitation company opened a common deposit account (hereinafter referred to as the “the deposit account in this case”) in the sole name of the rehabilitation company with the Defendant bank around July 28, 2005 in order to accumulate the reserve fund for special repairs under the Rental Housing Act, and set aside a deposit amounting to 66,55,300 won in total from June 2005 to March 2007 (hereinafter referred to as the “deposit in this case”) by depositing the reserve fund for special repairs in the above passbook.

D. Meanwhile, the Defendant issued a loan claim amounting to KRW 1,035, 300, 00 to the rehabilitation company (round January 12, 2002, the date of loan), but the rehabilitation company filed an application for corporate rehabilitation procedures on July 6, 2007, and deposited the instant deposit (the total amount of deposited deposits and interest KRW 66,624, 373) against the Defendant’s above loan claim against the company company at the Debtor Rehabilitation Council around October 23 of the same year.

[Ground of Recognition: Facts without dispute, Gap evidence 1, 4, Eul evidence 1 to 3, and whether the pleading has been completed before oral argument]

2. The assertion and judgment

A. The plaintiff's assertion

(1) The offset disposition against the Defendant’s deposit of this case is in violation of Article 145 of the Debtor Rehabilitation and Bankruptcy Act.

(2) The instant deposit is a special repair reserve accumulated pursuant to the Rental Housing Act. The special repair reserve under the Rental Housing Act is the money to be transferred to the first council of occupants’ representatives organized after the lapse of the mandatory rental period when the rental business operator sells the rental housing after the lapse of the mandatory rental period. The special repair reserve funds deposited by the rental business operator in the financial institution should be deemed to be reverted to the council of occupants’ representatives who will be organized after the lapse of the compulsory rental period.

Meanwhile, according to the Enforcement Decree of the Rental Housing Act, the special repair reserve is to be deposited and managed under the joint name of the head of Si/Gun/Gu having jurisdiction over the location of the leased housing and the rental business operator. Although the title holder of the deposit account of this case is the sole name of the rehabilitation company, the defendant was aware that the rehabilitation company opened the deposit account of this case for the purpose of accumulating the special repair reserve fund. The defendant was demanding the defendant around June 19, 2007 to clarify that the deposit of this case is the special repair reserve fund and transfer the special maintenance reserve fund to the National Agricultural Cooperatives Federation in the name of 00 market and to the head of local government, in light of the fact that the rehabilitation company and the market of this case are the joint deposit owner of the savings account of this case.

Ultimately, the deposit of this case is not the property of the rehabilitation company, and the defendant cannot offset the claim of the rehabilitation company against the deposit of this case.

(b) the relevant regulations;

(1) The Debtor Rehabilitation and Bankruptcy Act (amended by Act No. 8635 of August 3, 2007)

Article 145 (Prohibition of Set-off)

1. Where any rehabilitation creditor or any rehabilitation secured creditor bears obligations for the debtor after the rehabilitation procedures commence;

2. Where any rehabilitation creditor or any rehabilitation secured creditor bears obligations to the debtor with the knowledge of the suspension of payments, an application filed for commencement of rehabilitation procedures or an application filed for bankruptcy: Provided, That the same shall not apply to cases falling under any of the following items:

(a) When such obligations are borne on grounds prescribed by Acts;

(b) When any rehabilitation creditor or any rehabilitation secured creditor is involved in the cause that accrues before he/she becomes aware that an application for the commencement of rehabilitation procedures or an application for strike is filed;

(c) Where the cause accrues not less than one year before the time the rehabilitation procedures commence and the time the bankruptcy is declared.

3. When the debtor of the debtor for whom rehabilitation procedures commence acquires any other person's rehabilitation claim or any other rehabilitation security right after such rehabilitation procedures commence.

4. When the debtor for whom rehabilitation procedures commence acquires any rehabilitation claim or any rehabilitation security right with knowledge that the debtor's payment suspension, an application for commencement of rehabilitation procedures, or an application for bankruptcy: Provided, That the same shall not apply to cases falling under any item of subparagraph 2;

(2) Rental Business Act (amended by Act No. 8852 of February 29, 2008)

Article 17-4 (Accumulation, etc. of Special Repair Appropriation Funds)

(1) A rental business operator of rental housing under the provisions of Article 17 (1) shall accumulate special repair reserve funds required for the replacement and repair of main facilities.

(2) In the case of converting the constructed rental housing into parcelling-out after the lapse of the mandatory rental period, the rental business operator shall hand over the special repair reserve accumulated under the provisions of paragraph (1) to the council of occupants' representatives constituted for the first time under the provisions

(3) Matters necessary for the rates, procedures for use, follow-up management, accumulation methods, etc. of special repair reserve funds shall be prescribed by Presidential Decree.

(3) Enforcement Decree of the Rental Housing Act

Article 15-4 (Rate, Procedures for Use, etc. of Special Repair Appropriation Funds)

(3) A special repair reserve under Article 17-4 (3) of the Act (hereinafter referred to as "special repair reserve") shall be accumulated every month from the date one year passes from the date of inspection of use (referring to approval for temporary use, if approval for temporary use is obtained), and the accumulation rate shall be as follows:

(4) Special repair reserve funds shall be deposited and managed separately in financial institutions under the joint name of a rental business operator and the number of the Mayors/Guns/Gus having jurisdiction over the location of the relevant rental housing or the head of the Gu: Provided, That where a large enterprise operator is the State, a local government, the Korea National Housing Corporation, or a local government-invested public corporation,

(5) A rental business operator who intends to use special repair reserve funds shall consult in advance with the head of a Si/Gun/Gu having jurisdiction over the location of the relevant rental house.

C. Determination

(1) First of all, the defendant's claim against the rehabilitation company does not fall under any of the subparagraphs of Article 145 of the Debtor Rehabilitation and Bankruptcy Act. Thus, the plaintiff's argument that the offset disposition against the defendant's deposit of this case violates Article 145 of the Debtor Rehabilitation and Bankruptcy Act without exception is without merit.

(2) Next, if the instant deposit is not a property of the rehabilitation company, the Plaintiff’s claim for return of unjust enrichment is nonexistent, and the Plaintiff’s assertion in this case is not sufficient in itself.

Furthermore, unless there are special circumstances, where the contributor and the depositor are the same, the deposit claim belongs to the owner of the gold. The amount of the special repair reserve under the Rental Housing Act is a rental business operator who is both the contributor and the deposit owner of the instant case. Thus, the deposit claim of this case is the property of the rehabilitation company.

Meanwhile, since a rental business operator may sell a rental house after the lapse of the mandatory rental period, it cannot be deemed that the composition of the council of occupants' representatives is scheduled later as a matter of course, and even if the council of occupants' representatives is formed by the rental business operator by selling a rental house on behalf of the rental business operator, the council of occupants' representatives only has the obligatory claim to seek the transfer of the special repair reserve accumulated by the rental business operator in accordance with the Rental Housing Act, and the Rental Housing Act provides for the transfer of the special repair reserve accumulated by the rental business operator in the event that the council of occupants' representatives is organized by the Rental Housing Act, it cannot be said that the special repair reserve is attributable to the council of occupants' representatives which is to be constituted by the special repair reserve of the rental business operator. Therefore, this part of the plaintiff'

In addition, according to the Rental Housing Act and the Enforcement Decree of the same Act, the special repair reserve fund is organized under the joint name of the rental business operator and the head of Si/Gun/Gu having jurisdiction over the location of the leased house, and according to the statement in the evidence No. 5 and No. 6, it can be acknowledged that the 00 market demands the defendant to open the deposit of this case to the National Agricultural Cooperatives Federation deposit account in the name of 00 market around June 19, 2007, by disclosing that the deposit of this case is the special repair reserve fund and requiring the defendant to open the deposit account in the name of 00 market. However, the above circumstance alone does not necessarily mean that the 00 market for the deposit account of this case opened by the rehabilitation company in the name of a single person in violation of the above Acts and subordinate statutes. Thus, the plaintiff's assertion in this part is without merit.

Although the accumulation of reserves for special repair and maintenance is compared to the implementation of a long-term repair and maintenance plan and preventing the aging of a building, it is for the public interest purpose to promote stability in the living of the people, as long as the legal offset is not prohibited, the defendant's offset disposition against the deposit of this case cannot be deemed unlawful. Thus, the plaintiff's assertion is without merit.

3. Conclusion

Therefore, the plaintiff's claim is dismissed for reasons.

Judges Cho Jin-chul et al.