ABD Co., Ltd. (Attorney Kim Young-chul, Counsel for the plaintiff-appellant)

Green Line Co., Ltd. (Law Firm Yu & Yang, Attorneys Lee Chang-hun et al., Counsel for the defendant-appellant)

October 7, 2015

Suwon District Court Decision 2014Gahap150 (Mains) decided March 4, 2015, 2014Gahap4503 (Counterclaim) decided March 4, 2015

1. Of the part of the judgment of the court of first instance against the Defendant (Counterclaim Plaintiff), the part against the Defendant (Counterclaim Plaintiff) shall be revoked, and the claim against the Plaintiff (Counterclaim Defendant) corresponding to the revoked part shall be dismissed.

2. The part concerning the conjunctive counterclaim of the first instance judgment shall be revoked.

3. The total costs of the lawsuit shall be borne by the plaintiff (Counterclaim defendant) in total with the principal lawsuit and the counterclaim.

1. Purport of claim

A. Purport of the principal claim

The Defendant (Counterclaim Plaintiff; hereinafter “Defendant”) shall pay to the Plaintiff (Counterclaim Defendant; hereinafter “Plaintiff”) 182,38,876 won with 6% interest per annum from October 31, 2013 to the service date of a duplicate of the instant complaint, and 20% interest per annum from the following day to the day of complete payment.

B. Claim of the preliminary counterclaim

1) As to the claims listed in Attachment 1:

A) On August 13, 2013, between the Plaintiff and BSEL, the contract to establish a security interest in the claim between the Plaintiff and BSEL was revoked; and

B) As to the claims listed in paragraph (1) of the attached Table No. 1, the Plaintiff fulfilled the registration procedure for cancellation of the registration of the establishment of the collateral security interest in the claim, which was completed on August 14, 2013 by the receipt No. 22 of the Korea District Court Branch Branch Branch Branch.

2) As to the claims listed in Attachment 2:

A) On August 13, 2013, between the Plaintiff and BSEL, the contract to establish a security interest in the claim between the Plaintiff and BSEL was revoked; and

B) As to the claims listed in paragraph (2) of the attached Table No. 2, the Plaintiff will implement the procedure for cancelling the registration of cancellation of the registration of the establishment of the collateral security interest in the claim, which was completed on August 14, 2013 by the receipt of No. 23 of the Korea District Court,

2. Purport of appeal

Paragraph 1 of this Article and Paragraph 1 of the preliminary counterclaim are the same.

1. Basic facts

The following facts do not conflict between the parties, or can be acknowledged by comprehensively considering the following facts: Gap evidence 1, Gap evidence 3 through 12 (the evidence No. 9 is part of Gap evidence No. 11), Gap evidence 13-1 through 10, Gap evidence No. 14-1 through 26, Gap evidence No. 15, Eul evidence No. 2-2, Eul evidence No. 2-1, Eul evidence No. 4-1, Eul evidence No. 7, and the whole purport of the arguments in relation to the system in question in the court of first instance.

A. The Plaintiff is a company that runs the business of selling home frying and selling fish, and the Defendant is a company that runs the business of manufacturing and selling fish, scaming and selling fish, and NonSEL (hereinafter “NonSEL”) has supplied home fryer Co., Ltd. and home fryer Co., Ltd. (hereinafter “ home fryer Co., Ltd.”) with food 34 food cambling in the whole country through 34 stores, while operating home fryer and home fryerco Co., Ltd. (hereinafter “ home fryco”).

B. On January 2, 2013, the Plaintiff entered into a contract for the supply of goods, such as Brazil Dried meat, with the terms of a one-year contract for the supply of goods to BSEL with the terms of a one-year contract, and demanded BSEL to guarantee the payment for the goods unpaid to BSEL around August 2013, when the Plaintiff supplied BSEL with BS Dried oil.

C. Accordingly, on August 13, 2013, nonSEL concluded a collateral security right with respect to the Plaintiff’s claim as indicated in attached Table No. 1 (hereinafter “instant claim”) against the Home PSEL’s Home Pug, with a view to securing the Plaintiff’s claim for the purchase of goods against the non-SV, on August 13, 2013, with respect to the claims indicated in attached Table No. 1 (hereinafter “instant claim”), the collateral security right holder against the Plaintiff, the debtor, the debtor, the maximum debt amount, and the period of existence, up to August 12, 2018 (hereinafter “instant claim”), with respect to the claims described in attached Table No. 2 against non-SSP as indicated in the attached Table No. 2 against the Home PSP, the collateral security right holder, the debtor, the maximum debt amount of KRW 150 million, and the period of existence up to August 12, 2018, with respect to each of the instant claims established by the lower court No. 23134, May 21, 20134, 2018.

D. From January 15, 2013 to September 27, 2013, the Plaintiff supplied BSEL 2,309,330,840 won in the aggregate. Of them, the Plaintiff was not paid KRW 253,756,80 in the amount of goods supplied to September 11, 2013 and KRW 35,728,560 in the aggregate of KRW 289,485,360 in the amount of goods supplied to September 27, 2013 (= KRW 253,756,800 + KRW 35,728,568,560 in the amount of goods supplied to September 27, 2013).

E. On October 14, 2013, the Plaintiff notified the Home Packer of the instant security right creation by attaching a copy of the instant security right creation agreement and a copy of the pertinent registration certificate on the registration of the instant security right, and the said notification reached the Home Packer on October 15, 2013.

F. While the Defendant entered into a goods supply contract with ViSEL and supplied goods, such as reflectors, from November 2012 to SSEL, the Defendant was transferred all of the claims from SSEL on August 28, 2013 (hereinafter “transfer of the instant claim” or “acquisition of the instant claim”).

G. On October 1, 2013, nonSEL notified the Home Pussus of the instant assignment of claims by content-certified mail, and the said notification reached the Home Pussus on October 2, 2013.

H. On October 31, 2013, the Defendant received KRW 181,347,097 from the Home Plus in accordance with the assignment of the instant claim.

2. Determination on the main claim

A. Summary of the plaintiff's assertion

Article 35(1) of the Act on Security over Movable Property, Claims, Etc. (hereinafter “movable Claim Security Act”) provides that “The acquisition or loss of security interest in a claim under an agreement may be asserted against any third party other than the obligor of a nominative claim (hereinafter “third party obligor”) at the time of registration in the collateral security register,” and Article 35(3) of the same Act provides that “In the event that the registration of the collateral security register and the notification or consent under Article 349 or 450(2) of the Civil Act are made with respect to the same claim, the obligee of the claim, which is the object of the security interest or the security, may claim the right according to the registration and notification to a third party other than the obligor and the arrival or acceptance of the notification, unless otherwise provided for in the Acts, and thus, the right of priority as to the claim of this case between the Plaintiff and the Defendant, the assignee of the claim of this case, who is the security interest, shall be based on the prior and following the date on which the assignment of the claim of this case reaches the Home Pus.

However, the Defendant, as the assignee of the instant claim on October 31, 2013, was reimbursed the instant claim amounting to KRW 181,347,097, which is the subject of the instant security right, from the Home Plusss. Therefore, the Defendant infringed the Plaintiff’s priority right, which is the mortgagee of the instant case, thereby gaining profits equivalent to KRW 181,347,097, which is equivalent to the Plaintiff’s damages equivalent to the same amount. Accordingly, the Defendant, as unjust enrichment, has the duty to return the said KRW 181,347,097 to the Plaintiff.

B. Determination

According to Article 35(1), (2), and (3) of the Act on Security over Movable Property Claims, the Plaintiff, the secured right holder of the instant security right, may oppose the Home Pursuant to the Home Pream, the third obligor, if it notifies the Defendant of the establishment of the instant security right by creating a certificate of registration on the establishment of the instant security right, and the right of registration on the instant claim between the Plaintiff and the Defendant, the assignee of the instant claim, shall be based on the prior and following the date the Plaintiff’s notice of the establishment of the instant security right and the assignment of the instant claim reaches the Home Pream, which is the object of the instant security right, on October 14, 2013. As seen earlier, the Plaintiff notified the Defendant of the establishment of the instant security right by attaching a copy of the instant security right creation contract and a copy of the certificate of registration on the establishment of the instant security right to the Defendant on October 15, 2013. Thus, the Plaintiff may exercise the right of registration on the instant claim 201,03 Home P.314.

However, unjust enrichment is established by making profits from another person's property or labor without any legal ground and thereby causing damage to another person. Thus, even if there exists profits without any legal ground, if it does not cause damage to the other person, the other person cannot claim return of unjust enrichment (see Supreme Court Decision 2009Da100418, Jul. 28, 201, etc.). In this case, even if the defendant received reimbursement of KRW 181,347,097 of the claim amount from the Home Preferred to as the third debtor prior to the plaintiff who was the first priority, even if the defendant received reimbursement from the Home Preferred to as the third debtor, the above repayment was due to the first priority of the right. The Home Preferred to as the plaintiff cannot set up against the plaintiff with the repayment against the defendant. Thus, the plaintiff can still claim the security right of this case and receive the amount of the claim of this case due to the execution of the security right, and thus the plaintiff's claim of this case cannot be said to have caused any damage due to the above defendant's payment.

3. Conclusion

Therefore, the plaintiff's claim of this case shall be dismissed as it is without merit. Since the part against the defendant among the part against the plaintiff among the part against the principal lawsuit of the judgment of the court of first instance, which has concluded a different conclusion, is unfair, it shall be accepted by the defendant, and it shall be revoked, and the plaintiff's claim for the principal lawsuit corresponding to the revoked part shall be dismissed. As to the defendant's claim for the preliminary counterclaim of this case, unless the plaintiff's claim of this case is justified, the part against the preliminary counterclaim of the judgment of the court of

[Attachment]

Judges Kim Jong-Un (Presiding Judge)

1) Therefore, the Defendant’s claim that the Defendant acquired from nonSEL is conceptually larger than that of the instant claim that is subject to the Plaintiff’s creation of the instant security right, but the part at issue in the instant case is identical to the scope of the instant claim, and thus, the claim in this case is without distinction below.