2016 Doz. 23522 Unlawful gains

A District Land Partition Adjustment Association

B Stock Company

October 26, 2017

December 21, 2017

1. The plaintiff's claim is dismissed.

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

The defendant shall pay to the plaintiff 201,00,000 won with 5% interest per annum from the day following the day when a copy of complaint is served to the day when the judgment is rendered, and 15% interest per annum from the day when the complaint is served to the day when the complaint is fully repaid.

1. Basic facts

A. The relationship between the parties

1) On March 10, 1993, the Plaintiff is a land subdivision rearrangement association which obtained authorization for the land subdivision rearrangement project for the Ulsan-gu Seoul Won (hereinafter “A zone”), and the D regional housing association is a association established for the purpose of constructing a new apartment on the ground of the land lot outside the land substitution area of 18,012.7 square meters (hereinafter “instant project site”).

2) The Defendant (F Co., Ltd.) was a company engaged in civil engineering, construction work, housing construction work, etc., and concluded an agency service contract with the D Regional Housing Association on June 24, 2014 regarding the new apartment construction work on the ground of the project site.

(b) Progress of a land readjustment project;

1) On June 26, 2004, the Plaintiff entered into a contract for construction works with G Co., Ltd. (hereinafter “G”) on a land readjustment project (including the following changes) (hereinafter “instant contract for construction works”). After several times, the contract amount on May 22, 2009 is KRW 15,290,000 (= civil construction cost + KRW 9,16,000,000 + KRW 6,124,000,000 + KRW 1,000,000 + office work cost + KRW 700,280,000,000 + KRW 300,000 + KRW 30,000,000 + KRW 30,000,000 + KRW 30,000,000 + KRW 309,91,000,000 + KRW 309,000,00 per land readjustment project (hereinafter “the total land substitution plan”).

2) On May 22, 2009, the Plaintiff: (i) approved that G transferred the land allotted by the authorities in recompense for development outlay in the name of progress payment to G to the Plaintiff; and (ii) paid KRW 5,00,000 out of the purchase price of the land allotted by the authorities in recompense for development recompense for development outlay for development outlay for the Plaintiff; (iii) paid KRW 5,00,000 among KRW 12,508,925,419 to G; (iv) any balance of KRW 7,508,925,419 to G; and (v) upon the request of G, the Plaintiff divided the land allotted by the authorities in recompense for development recompense for development outlay for the implementation of the project; and (v) made an agreement that “the ownership of KRW 5,00,000,000 on the date of the contract may be transferred to a third party designated by I; and (v) paid KRW 30,519,259,295,29.

3) When a land readjustment project was interrupted on September 201, the Plaintiff urged G and I to resume the land readjustment project several times from that time to 2015, and G and I prepared on March 27, 2012 a letter of obligation completion guarantee stating that “G is responsible for and completed the land readjustment project in A zone and I is on the part of the Plaintiff.”

(c) Sale of land allotted by I in recompense for development outlay;

On March 31, 2015, J regional housing associations and land allotted by the authorities in recompense for development outlay entered into a sales contract with the total amount of KRW 32,00,000,000,000. At that time, J branch housing associations were registered as owners at the management site of the land allotted by the authorities in recompense for development outlay.

(d) Instituting the current development of the corporation (hereinafter referred to as " current development") and termination of the contract for construction works;

1) On September 12, 2012, the current milk development, which had a claim against the Plaintiff for full amount, filed an application for the seizure and collection order with the claim claim amounting to KRW 2,171,610,956 among the claim for return of KRW 12,508,925,419 (hereinafter “Plaintiff’s claim for return of unjust enrichment”) received from the Plaintiff as the debtor, G as the third debtor, and the Plaintiff’s claim for purchase and sale of land allotted in recompense for development outlay owned by the Plaintiff against G (hereinafter “Plaintiff’s claim for return of unjust enrichment”), and received a collection order on September 20, 2012.

2) On October 9, 2012, current U.S. Development filed a lawsuit against G for collection (U.S. District Court 2012Da7614, Busan High Court 2014Na4095). On November 25, 2015, the Busan High Court rendered a judgment that "G shall pay the present development 2,171,610,956 won, and the delay damages therefor," and the judgment on December 15, 2015 became final and conclusive (hereinafter referred to as "the collection proceeds case").

3) On the other hand, in the case of the collection deposit, the current development declared that, “G had received most of the construction cost from the Plaintiff, but the construction was suspended, and there is no possibility of completing the construction in the future,” and that the construction contract was terminated by subrogation of the Plaintiff on January 10, 2013. The construction contract was lawfully terminated after the briefs reached G on June 13, 2013.

(e) Filing a lawsuit against the mining engineering company (hereinafter referred to as "mining engineering");

1) From May 10, 2006 to December 2, 2008, the Mining Engineering Co., Ltd. entered into a technical service agreement with the Plaintiff regarding the project plan (revision) and the shop design service, and the construction supervision service agreement, and completed all of its services accordingly, and the Plaintiff did not receive more than KRW 30,00,000 in the name of the service cost, on the ground that the Plaintiff did not receive more than KRW 30,00,000 in the name of the service cost, and the head of Ulsan Northern Northern District Co., Ltd. notified the Plaintiff of the suspension of the land readjustment project from March 1, 2013 to the appointment of a specialized construction-supervising firm.

2) On March 29, 2013, the Gwangju Engineering filed a lawsuit by subrogation against G on behalf of the Plaintiff for the payment of money equivalent to the remaining service costs of the mining engineering among the amount of the Plaintiff’s unjust enrichment returned claims (Ulsan District Court Decision 2013Gahap2203, Busan High Court Decision 2014Na6275, Feb. 6, 2016). The Busan High Court decided to recommend reconciliation that “G shall pay the additional mining engineering amount of KRW 215,728,100, and delay damages therefor,” and on March 4, 2016, the decision to recommend reconciliation became final and conclusive.

(f) Non-prosecution disposition against K.

The plaintiff filed a complaint against the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) on May 22, 2009 on the ground that "G's actual negligence K did not have the intention or ability to complete a land readjustment project within the project implementation period, and on May 22, 2009, the plaintiff filed a complaint against the plaintiff's head of the plaintiff association for the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (hereinafter referred to as "Act on the Aggravated Punishment, etc. of Specific Economic Crimes (hereinafter referred to as "Fraud"), on the ground that "the plaintiff's creditor of the plaintiff's right to own and dispose of the land allotted in recompense for development outlay shall not properly proceed with the compulsory execution of the land allotted by the land allotted for development outlay and the right to dispose of the land shall be transferred to I by December 31, 201, and G shall be paid the price of the land allotted in recompense for development outlay and shall be completed the construction project by December 31, 2011."

【Unsatisfied Facts, Gap's entries in Gap's 1 through 8, 10, 14, 16, 18, 19 (including branch numbers; hereinafter the same shall apply), and the purport of the whole pleadings

2. The assertion and judgment

(a)the master;

In the case of a collection contract for construction works, since the legal brief dated June 10, 2013 containing the Plaintiff’s expression of termination of the contract for construction works on behalf of the Plaintiff on behalf of the Plaintiff, reached G on June 13, 2013, or the copy of the complaint in this case was delivered to the Defendant at the latest, the construction contractor G and construction guarantee company 1, a contractor, are obligated to return to the Plaintiff the portion equivalent to 39.94% remaining after subtracting the portion equivalent to the fair rate of 60.06% from the land secured by the development recompense that had already been paid to the Plaintiff due to the termination of the contract for construction works, and I sold the portion equivalent to 81.21% of the entire land secured by the development recompense for development outlay in total to the J District Housing Association on March 31, 2015 in total at KRW 32,00,000,000.

On the other hand, the defendant is a company established by K for the purpose of evading the debt, etc. to G's current development and the secondary engineering, and it is a company substantially identical with G and I operated by K, such as taking over all rights and obligations under the agency services contract concluded by G with D local housing associations.

Therefore, the Defendant, along with G and I, returned to the Plaintiff KRW 15,737,963,305 (i.e., KRW 32,000,000,000 to X 39.94% / 81.21%) due to the termination of the construction contract. In addition, the Defendant seeks payment of KRW 201,00,000 upon a partial claim.

B. Determination

1) We examine the following facts: G’s total amount of collection charges of KRW 2,171,610,956 and damages for delay charges of KRW 215,728,100 and the damages for delay damages of KRW 215,728,10 for secondary mining engineering; according to the evidence evidence Nos. 12,16,19,20, the D Regional Housing Association concluded an agency contract with G on March 31, 2013 and ratified it by holding a general meeting on March 31, 2013; G transferred to the Defendant all of its authority under the agency contract and all of its claims within the D Regional Housing Association on June 23, 2014; D Regional Housing Association held the board of directors on June 24, 2014; it constitutes an unlawful transfer of rights, etc. under G’s agreement with the Defendant; and it constitutes an unlawful transfer of the Defendant’s shares in the process of concluding the 60th request for the return of the Plaintiff’s shares in the association.

2) However, in full view of the circumstances as seen earlier, comprehensively taking account of the overall purport of the arguments as seen earlier, it is insufficient to recognize that the Defendant, G, and I are practically the same company that the Defendant, G, and I substantially operated by K, and there is no other evidence to prove otherwise.

① Even if the actual private shares of the Defendant, G, and I are the same person or are similar to the company’s business objectives, such circumstance alone cannot be readily concluded that the Defendant, G, and I are the same companies.

② Rather, it is natural for a pro-subsidiary to have a substantial personal and capital combined relationship between themselves (see, e.g., Supreme Court Decision 2004Da26119, Aug. 25, 2006).

③ There is no objective data or circumstance to deem that the Defendant does not clearly distinguish property, business, and external trade activities between G and I, or that there is a mixture of materials or circumstances.

3) Therefore, the Plaintiff’s assertion based on the premise that the Defendant is the same company as G or I is without merit.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.

The presiding judge shall appoint a judge;

Judges Kim Jae-jin

Judges Noh Jeong-sik