209Na15215 Registration of transfer of ownership

A Stock Company

Korea Land Trust Corporation

Suwon District Court Decision 2004Gahap3594 Decided June 22, 2005

Seoul High Court Decision 2005Na58269 Decided August 16, 2006

Supreme Court Decision 2006Da62461 Decided January 30, 2009

September 16, 2010

December 30, 2010

1.The judgment of the first instance shall be modified as follows:

A. The defendant received KRW 40,193,748,012 from the plaintiff, and then the plaintiff as follows:

(1) Each procedure for cancellation of trust registration completed on August 2, 200 by the receipt No. 78660 of the trust registration completed on May 4, 2000 and completed on August 2, 200, with respect to each real estate listed in the separate sheet No. 7860, listed in the separate sheet No. 1, 2, 3, 5, 6, 7, 8, 9, and 10, with respect to each real estate listed in the separate sheet No. 7860;

(2) On December 31, 200, with respect to each real estate listed in the separate sheet 1 to 10, the procedures for the registration of ownership transfer due to the termination of the trust will be implemented.

B. The plaintiff's remaining claims are dismissed.

2. The total cost of a lawsuit shall be three minutes, which shall be borne by the plaintiff and the remainder by the defendant.

Purport of claim

The Defendant, as the Plaintiff

(a) carry out each procedure for cancellation of trust registration completed on August 2, 2000 by the receipt No. 78660 of the trust registration completed on May 4, 2000 and completed on August 2, 200 by the receipt No. 7860 of the trust registration completed on August 2, 2000 with respect to real estate in the separate sheet No. 1, 2, 3, 5, 6, 7, 8, 9, and 10 of real estate in the separate sheet No. 7860;

B. On December 31, 200, with respect to each real estate listed in the separate sheet 1 through 10, the procedures for the registration of ownership transfer due to the termination of the trust will be implemented.

Purport of appeal

The part against the defendant in the judgment of the first instance shall be revoked, and the plaintiff's claim corresponding to the revoked part shall be dismissed.

1. Basic facts

The following facts may be acknowledged if there is no dispute between the parties, or if it combines the whole purport of the pleadings with each of the descriptions of Gap evidence 1 through 4 (including each number), Eul evidence 6, 8, Eul evidence 18 and 19.

[1]

○ On August 31, 1996, the Plaintiff and the Defendant entrusted the Defendant with B 5,311.6 square meters (hereinafter “instant land”). On the ground of the instant land, the Defendant concluded a trust contract for sale-type land (hereinafter “instant trust contract”) with the content that the Defendant would return trust property and profits to the Plaintiff upon the termination of the contract, which reflects the change in the terms and conditions. The Defendant, on the ground of the instant land, constructed an automobile specialized building of the third floor below the third floor above the ground as a trust property and sold it in lots. The Defendant acquired an amount equivalent to a certain percentage of the trust proceeds as trust proceeds, and upon the termination of the contract, acquired the amount as a trust proceeds, and completed the contract, the Defendant would return trust property and profits to the Plaintiff.

○ The Defendant completed the registration of ownership transfer under the name of the Defendant with respect to the instant land in accordance with the instant trust agreement, and completed on December 27, 199 the parking lot, business facility, and sales facility of the 8th ground floor above the 3rd ground (hereinafter “instant building”). On May 4, 200, the Defendant completed the registration of trust and the registration of ownership transfer under the name of the Defendant with respect to the instant building (However, the real estate listed in the attached list 4 was completed as the co-owned property partition and the registration of ownership transfer under the name of the Defendant on August 2, 200).

○ The instant trust agreement terminated on December 31, 200 with the expiration date, and on June 23, 2004, the instant building was sold in lots except each of the real estates listed in the separate sheet 1 through 10 (hereinafter referred to as “each of the instant real estates”).

[2]

On December 23, 200, the Defendant notified the Plaintiff on December 23, 200 that the total amount of trust loans has not been repaid due to the unsold sale of the instant building. The Defendant notified that development costs, such as trust loans, will be repaid by January 5, 2001 (the amount including interest on loans and non-execution expenses), but the Defendant failed to repay it, again notified that the development costs will be recovered by converting trust assets, if the above development costs are not repaid by the 28th day of the same month from February 15, 2001 and the 28th day of the same month.

[3]

The relevant provisions of the instant trust agreement are as follows.

The Trust Contract of this case

Article 4 (Borrowing of Funds)

(1) A defendant may appropriate funds necessary for building construction and performance of trust affairs from trust property, or borrow funds at the expense of the plaintiff or beneficiary.

Article 6 (Raising and Enforcement of Required Funds)

(1) The defendant shall raise the required funds by the following methods:

1. Proceeds from sale;

2. Loans from financial institutions (within the limit of 100% of construction expenses);

(2) In principle, funds shall be executed in the following order:

Strategy and Finance.

5. Redemption of borrowings and interest thereof;

The approximate shall be the approximates.

Article 13 (Initial Beneficiary) The first beneficiary of this Trust shall be the plaintiff: Provided, That the third person may be the beneficiary.

Article 18 (Payment of Expenses)

(1) The following expenses shall be borne by beneficiaries:

1. Taxes, public imposts, and registration expenses for the trust property;

2. Design and supervision expenses and construction cost;

3. Repayment of loans, rental deposit, etc. and interest thereon;

4. Repair, preservation, and improvement expenses of real estate in trust, and fire insurance premiums;

5. Expenses incurred in dealing with sale in lots;

6. Other expenses equivalent to the following subparagraphs:

Article 19 (Appropriation of Expenses Incurred in Realization of Trust Property) Where money belonging to a trust property is not sufficient to appropriate funds for the repayment of borrowings and interest thereon, losses incurred without the defendant's negligence in the course of performing trust affairs, other expenses incurred in performing trust affairs, and the payment of the money by the defendant, the beneficiary shall be claimed, and where the money falls short of the money, the method and value that the defendant considers reasonable, which are part of

Article 20 (Accounting of Trust and Delivery of Profits)

(1) The calculation date for trust property shall be June 30, December 31 and the termination date of the trust, and the defendant shall prepare a statement of receipt for the relevant calculation period and submit it to the beneficiary.

Article 21 (Trust Remuneration)

(1) The remuneration for trust during the construction period until the completion of development, such as the completion of a building, shall be the amount equivalent to 5/100 based on the aggregate of the value of entrusted property and construction expenses. In such cases, the defendant shall calculate the remuneration for trust in accordance with the formula in each calculation machine to receive it from the trust property, and if it is impossible to receive it from the trust property

(2) The amount of trust fees during the period of sale in lots after completion of development, such as the completion of buildings, shall be the amount equivalent to 5/100 (3/100 of the amount of sale in lots after March 1, 200) of the price of sale in lots. In such cases, where trust fees are to be received from trust property and cannot be received from trust property, the defendant shall claim the beneficiary thereof.

Where the trust contract is terminated under Article 25 (Delivery of Trust Property upon Termination of Trust), the defendant shall obtain approval from the beneficiary for final settlement, and deliver the trust property to the beneficiary in accordance with the following methods in return for the certificate of beneficial interest and redemption:

1. As to the trusted real estate, the defendant shall cancel the trust registration and transfer the registration to the beneficiary, and then transfer the trusted real estate to the beneficiary in the existing condition;

2. Omission;

3. The repayment liabilities for borrowings, rental deposit, etc., and other obligations shall be treated as follows:

(a) Omission;

B. The defendant may withhold the delivery of money belonging to trust property in order to secure funds for the repayment of borrowed money and other debts, and when this reservation falls short of the amount of money, the defendant shall have the beneficiary deposit the shortage with the beneficiary: Provided, That with the consent of the creditor, the defendant may, by succession of the borrowed money and other debts to the beneficiary, be exempted from

Matters of special agreement

Article 5 [Payment of Expenses] Where a trust company pays the expenses on behalf of a trust company, the interest rate shall be the interest rate borrowed from the outside due to the construction cost, etc. and where no external loan occurs, the interest rate shall be the interest rate calculated by adding 1.5% to the distribution profit rate of the bank-guaranteed corporate bonds

Article 9 [Methods of Sale] The sale price shall be determined in consultation with the plaintiff and the defendant, and when it is difficult to pay the construction completion money, other expenses, etc. due to the failure to sell in lots, the defendant may, in consultation with the plaintiff, sell in lots or convert it into the lease

2. Judgment on the assertion of conflict with res judicata

A. The defendant's assertion

On April 2002, the Plaintiff filed a lawsuit against the Defendant regarding the building unsold in lots until the time, including each of the instant real estate, as Seoul District Court 2001Kahap21798, and on January 9, 2004, the decision in lieu of conciliation of the above court became final and conclusive on January 9, 2004, and the Plaintiff decided to waive the right to claim for ownership transfer registration that was performed at the time of the above decision. The Plaintiff’s claim for ownership transfer registration of each of the instant real estate as the same cause for claim conflicts with the res judicata effect of the above final and conclusive conciliation decision.

B. Determination

In addition to the statement in Eul evidence No. 4, the above Seoul District Court 2001 Gohap 21798 (hereinafter referred to as "the conciliation decision of this case"), the main contents of the decision in lieu of conciliation on the above case No. 21798 (hereinafter referred to as "the above conciliation decision of this case") are as follows: ① the part unsold in the building of this case shall be sold to the conciliation intervenor (Co., Ltd. ASEAN Research Institute) in an amount equivalent to 22 billion won and value added tax; ② the above sales contract is established at the time when the payment of the down payment is made; ② the first intermediate payment, second intermediate payment, or balance after the payment of the down payment is made, the above sales contract becomes void if the conciliation intervenor did not pay the down payment or the first intermediate payment at the agreed date; ③ the plaintiff applies for cancellation of disposal order of the above real estate and ④ the plaintiff did not waive his ownership transfer registration on the trust relation between the plaintiff and the defendant, and the plaintiff did not pay the remaining part of the sales contract after the settlement decision of this case.

According to the above facts, the part concerning the waiver of the plaintiff's claim for transfer registration of ownership among the mediation decision of this case is valid only when the above contract of this case is duly formed and the balance is performed, and where the contract of this case is not established or its validity is lost, the part concerning the waiver of the plaintiff's claim for transfer registration of ownership based on the termination of the plaintiff's trust contract is not affected by the trust contract of this case between the plaintiff and the defendant, and as long as the above mediation intervenor did not pay the down payment and the above contract of this case is not concluded, it cannot be said that the plaintiff's claim of this case based on the termination

3. Whether to claim compensation for expenses and to recognize the right to sell self-help upon termination of a trust deed;

A. The parties' assertion

1) The plaintiff's assertion

As the trust contract of this case expires upon the expiration of the termination, the defendant shall revert each of the real estate of this case to the plaintiff pursuant to Article 60 of the Trust Act and Article 25 of the Trust Contract, so the defendant is obligated to implement the cancellation of the trust registration of this case and the transfer of ownership (hereinafter referred to as "transfer of ownership").

In addition, since the defendant did not arrange that the trust loan and interest are repaid in the trust account while lending funds from the trust account to the trust account, the defendant did not actually pay the trust loan and interest, so long as the defendant did not pay them, the right to claim compensation for expenses does not occur. Even if the defendant has the right to claim compensation for expenses against the plaintiff, the defendant cannot exercise the right to self-help sale under Article 42 of the Trust Act or Article 19 of the Trust Contract as long as the trust contract has already been terminated, so the defendant cannot refuse the registration of ownership transfer on account

2) The defendant's assertion

The defendant, as a trustee, has the right to claim compensation for expenses and the right to claim compensation for expenses against the plaintiff (hereinafter referred to as "right to claim compensation for expenses"), and has the right to sell self-help to satisfy the claim for compensation for expenses even after the termination of the trust contract of this case in accordance with Article 42(1) of the Trust Act or Article 19 of the Trust Contract. Thus, as long as the defendant intends to exercise his right to self-help sale, he is not obliged

B. Determination

1) Article 42(1) of the Trust Act concerning the trustee’s right to claim compensation for expenses after the termination of the trust contract, and Article 62 of the Trust Act concerning the method of executing the right to claim compensation for expenses cannot be deemed a mandatory provision. Therefore, under the principle of private autonomy, even if the parties agree to the scope or method of compensation after the termination of the trust contract by a special agreement between the parties under the

2) Article 19 of the Trust Contract of this case provides that "The beneficiary and the truster of the land trust of this case may sell all or part of the trust property as the proper method and value, and appropriate it for the payment of the money borrowed and interest accrued from the trust property, the loss incurred without the defendant's negligence in the course of performing trust affairs, and other expenses incurred in performing trust affairs, and the defendant's payment is insufficient." The beneficiary and the truster of the land trust of this case are both the plaintiff. According to the purport of the above provision, after the termination of the trust of this case, the defendant, the trustee, can claim for the payment of expenses necessary for the repayment to the plaintiff, the beneficiary designated as the right holder to whom the trust property of this case belongs, for the purpose of performing the trust affairs and the repayment of the loan and interest accrued therefrom, etc., under Article 19 of the Trust Contract of this case, after the completion of the trust of this case. It does not necessarily mean that the above loan and interest debt can be paid only after the repayment is made with the defendant's inherent property (see Supreme Court Decision 2006Da6461661, Jan. 30, 20

3) Next, Article 19 of the instant trust agreement provides that the Defendant may sell the trust property to satisfy the above claim for reimbursement of expenses, and appropriate the sale of the trust property for the payment of expenses. The purpose of the instant trust agreement lies in promoting the convenience of recovery of expenses, etc. related to the trust property by allowing the Defendant to dispose of the trust property and appropriate the proceeds for the payment of expenses, etc. related to the trust property, if the beneficiary fails to pay the expenses, etc. to the beneficiary during the existence of the instant trust or after the termination of the instant trust, even though the Defendant, the trustee, claimed expenses, etc. concerning the trust property, etc. was claimed to the beneficiary (see Supreme Court Decision 2003Da47621, Apr. 15, 2005). Therefore, where the Defendant, who is the trustee, has the right to claim

4) On this issue, the Plaintiff asserts that Article 19 does not apply after the termination of the trust agreement, since Article 25 subparagraph 3 of the trust agreement of this case regulates the method of compensation for expenses after the termination of the trust agreement, but Article 25 subparagraph 3 of the trust agreement of this case provides that the payment method for the obligation to a third party incurred in the course of performing the trust affairs shall be reserved if there remains any money among the trust property, and if there is a shortage in the reservation amount, the beneficiary shall deposit or obtain the consent of the third party, and the beneficiary shall take over the obligation with the settlement of the obligation to the third party at the time of the termination of the trust agreement of this case. Therefore, it is limited to the determination of the obligation reservation or the beneficiary's assumption of obligation to the third party at the time of the termination of the trust agreement of this case, and it does not exclude the effect of the special agreement as stipulated in Article 19

5) In other words, the Plaintiff is merely a standardized contract unilaterally prepared by the Defendant to conclude a contract with multiple customers. Article 9 of the Clause of the trust contract of this case provides that "If it is difficult for the Plaintiff to determine the sale price in consultation with the Plaintiff and to pay the construction deposit, other expenses, etc. due to the failure to pay the construction cost, etc., the Defendant may sell in lots or convert the sale to lease after discounting the price of the unsold goods after consultation with the Plaintiff." Thus, Article 9 of the above special contract provides that the disposal of the unsold goods at the time of the failure to sell in lots shall be preferentially applied to the above special contract and Article 19 of the contract of this case shall be excluded from the application of the above special contract. However, Article 9 of the above special contract provides that the Plaintiff and the Defendant may diversify the disposal method for the smooth disposal of unsold goods, and it does not purport that the Defendant shall not exercise the right to self-help and make a discount or conversion to lease after consultation with the Plaintiff. Therefore, the

6) Article 6(1) and (2) of the instant trust agreement provides that the Plaintiff shall repay the loan and interest required for the instant trust with the proceeds of sale in lots and the loan borrowed from the financial institution. Accordingly, in the event that the proceeds of sale in lots and the loans borrowed from the financial institution are unable to repay the trust loan and interest, the Defendant can settle the expenses of the existing loan, etc. by making additional loans as collateral. Thus, it is alleged that the repayment of the loan and interest is a violation of the instant trust agreement. However, the provisions of Article 6(1) and (2) of the instant trust agreement concerning the order of use at the time of the occurrence of the income, and it is not a provision concerning the order of use when the income accrues, and it is not a provision concerning the case where the entire

7) The plaintiff asserts that since the defendant committed a breach of trust with the parking lot of this case entrusted to the defendant's specially related person, and caused damages to the plaintiff about KRW 7.8 billion due to such breach of trust, the defendant is obligated to compensate the above damages pursuant to Article 38 of the Trust Act, and Article 44 of the Trust Act provides that the trustee shall not exercise the right to claim compensation for losses and the right to sell the trust property unless the trustee performs his/her duty to compensate for losses and restore the trust property under Article 38. Thus, the defendant cannot exercise his/her right to claim compensation for expenses or right to sell the trust property until compensating for the above damages.

The provisions of Article 44 of the Act on the Trust of Dol-man shall be deemed to apply to a trustee’s claim for expenses or compensation for damages while the trust contract is maintained without termination or termination in the middle of the trust contract, and it does not apply to the case where the trust is terminated (see, e.g., Supreme Court Decision 2005Da9685, Sept. 7, 2007). The Plaintiff’s above assertion is without merit without any need for further review.

8) As long as Article 63 of the Trust Act provides that "where a trust is terminated, the trustee shall make the final settlement of the trust affairs and obtain the approval of the beneficiary", the defendant may not exercise his/her right to claim reimbursement of expenses until obtaining the plaintiff's approval by making the final settlement of the trust affairs. However, Article 63 of the Trust Act, which is a provision on the calculation of the termination of the trust, provides that the trustee shall make the final settlement of the trust affairs upon the termination of the trust affairs, and that when the beneficiary approves the settlement thereof, the trustee shall be exempted from his/her liability for the trustee's final settlement of the trust affairs, and that the beneficiary shall not be entitled to transfer his/her rights other than the final settlement of accounts, pay the money, or take other property responsibilities against the trustee. In cases where the trust is terminated, it cannot be deemed that the requirements for the trustee to claim reimbursement of expenses or remuneration are stipulated (see, e.g., Supreme Court Decision 2005Da9685, Sept. 7, 2007).

C. Sub-committee

Therefore, the defendant can exercise the right of self-help sale in order to satisfy the above right of compensation for expenses with the right of claim for reimbursement of the expenses, such as the loan duly borne by the plaintiff for the performance and termination of trust affairs and the obligation for its interest.

3. Relationship between the duty to transfer ownership, self-help and sell ownership, and the duty to compensate for expenses;

A. The parties' assertion

1) The plaintiff's assertion

Even if the defendant can exercise his right to self-help sale, the plaintiff can exercise his right to claim ownership transfer registration against the defendant regardless of his right to self-help sale, so long as the defendant has not yet exercised his right to self-help sale, the defendant is obligated to implement the procedure for ownership transfer registration without any condition to the plaintiff, or to implement the procedure for ownership transfer registration at least at the time when he

2) The defendant's assertion

Since the Plaintiff’s obligation to compensate for expenses is a prior performance obligation, the Plaintiff cannot file a claim for ownership transfer before it is performed, so long as the Plaintiff fails to perform the obligation to compensate for expenses, all of the Plaintiff’s claim for ownership transfer should be dismissed. In the event that the Plaintiff pre-performances the obligation to compensate for expenses, the Defendant recognizes that the Plaintiff is obligated to perform the procedures for ownership transfer transfer registration. Therefore, it is unnecessary for the Plaintiff to file a claim

B. Determination

1) Even if a trustee may exercise the right to sell a trust property to receive compensation for expenses, etc. after the termination of the trust, such circumstance alone does not necessarily lead to the absence or extinguishment of a beneficiary’s right to claim the registration of transfer of ownership in the trust property designated as the right holder to whom the trust property reverts. The beneficiary may seek the procedure for registration of transfer of ownership in the trust property by paying the trustee expenses, etc. before the trustee exercises the right to self-help sale of the trust property and disposes of

2) Next, Article 19 of the trust agreement of this case provides that the trustee may exercise the right to self-help sale prior to the return of the trust property of this case, in the event that it is insufficient to cover expenses incurred in performing trust affairs in money, which is part of the trust property, and the defendant's payment, etc., after the termination of the trust, and further, prior to the exercise of the right to self-help sale of the trust property of this case, the beneficiary of this case and the right holder to whom the trust property of this case belong can file a claim for expenses against the plaintiff who is the right holder to whom the trust property of this case belongs. Thus, it is reasonable to deem that the beneficiary and the right holder

3) Meanwhile, in this case, the plaintiff asserts the relation of simultaneous performance with the duty of ownership transfer registration or the duty of cost compensation under the condition without any consent, and the defendant asserts to dismiss all of the plaintiff's claim. The plaintiff's obligation of cost compensation is the duty of preferential performance, as seen above, but there are disputes over the scope and amount of the duty of cost compensation that the plaintiff has to pay in advance. Accordingly, even if the plaintiff performs the prior performance duty, it is recognized that the defendant does not cooperate in the registration procedure while disputing the amount of expenses, etc., so the defendant does not dismiss the plaintiff's claim in whole, unless the plaintiff's objection is expressed, and in such a case, it is necessary to claim in advance as a lawsuit for future performance (see, e.g., Supreme Court Decisions 96Da33938, Nov. 12, 1996; 92Da5249, Apr. 27, 1993).

4. Scope of the Plaintiff’s obligation to compensate expenses

(a) Scope of compensation for expenses after the termination of a trust;

1) Parties’ assertion

A) The plaintiff's assertion

The borrowings and interest accrued after the termination of the instant trust contract cannot be deemed as expenses necessary to achieve the purpose of the statutory trust deemed to exist under Article 61 of the Trust Act, and it does not include expenses to be repaid by the Plaintiff.

B) Defendant’s assertion

The statutory trust following the termination of the instant trust agreement constitutes an extension of the existing trust even among the statutory trust, and includes the loan and interest accrued after the termination of the trust, new loan, building management expenses, publicity expenses and other expenses incurred in selling the instant building, and the expenses to be repaid by the Plaintiff, such as taxes and public charges, incurred during the trust period.

2) Determination

Article 19 of the Trust Contract of this case, where a beneficiary fails to pay expenses, etc. for the trust property while the trust of this case is in existence or after the termination of the trust of this case, the trustee can dispose of the trust property and appropriate them for the repayment of expenses, etc. for the trust property, thereby promoting convenience in recovery of expenses, etc. for the trust property (see Supreme Court Decision 2003Da47621, Apr. 15, 2005). Thus, even if the trust is deemed to exist after the termination of the trust of this case under Article 61 of the Trust Act and until the trust property is transferred to the beneficiary, the trustee may recover expenses, etc. for the trust affairs, including borrowings, according to the method prescribed in Article 19 of the Trust Contract of this case, and such expenses are deemed to have been properly borne by the trustee with due care to perform or terminate the remaining trust affairs during the period of the trust of this case (see, e.g., Supreme Court Decision 2003Da47621, Apr. 15, 2005).

B. Scope of compensation for interest on borrowings

1) Parties’ assertion

A) The plaintiff's assertion

The Defendant borrowed funds from outside and stored them in the Defendant’s own account, but added interest rate of 1.5% to 5% per annum at the time of original borrowing to the instant trust account while lending funds from the original account. The expenses for the Defendant’s claim for compensation to the Plaintiff include the interest added thereto (hereinafter “additional interest”). This is null and void since the Defendant acquired the right to trust property against the trustee’s duty to loyalty under Article 31 of the Trust Act. Thus, the principal and interest on the loan subject to compensation should be limited to the principal and interest borrowed by the Defendant from outside.

B) Defendant’s assertion

The defendant takes a method of lending funds to a trust account for individual trust business which requires funds by borrowing funds for each trust business in advance on the basis of the whole amount of each trust business without taking a method of raising funds for each business. The above additional interest rate shall not be null and void in violation of Article 31 of the Trust Act, since it reflects various kinds of taxes and public charges incurred by the defendant in keeping funds in its own account from the trust account, expenses incurred in borrowing funds, risk borne by the defendant, etc., and the above additional interest rate shall not be deemed null and void in violation of Article 31 of the Trust Act.

Even though the Defendant cannot exercise the right to claim compensation for expenses under the Trust Act with respect to the above additional interest due to Article 31 of the Trust Act, the above additional interest falls under the necessary expenses or beneficial expenses incurred by the Defendant from borrowing the funds under more favorable conditions than for the instant trust business as above, the Defendant may claim compensation for expenses equivalent to the above additional interest in accordance with the provisions of Article 739(1) of the Civil Act. In addition, the Defendant gains more profit than the Defendant directly raising funds by raising funds through the above method, and the Defendant suffered considerable loss, and thus, the Defendant may claim compensation for unjust enrichment equivalent to the above additional interest, pursuant to Article 741 of the Civil Act.

2) Determination

A) The following facts may be acknowledged if the statements in Eul evidence Nos. 11, 15-1 to 4, and 16 combine the purport of the whole pleadings.

○ Defendant borrowed the required funds in advance on the basis of the entire trust business and kept them in its own account without taking a method of raising funds necessary for a large number of trust businesses it operates, and lent them to the trust account of an individual trust business requiring funds.

○○ and the Plaintiff agreed that Article 5 of the terms of the instant trust agreement with respect to the loans, and Article 5 of the terms of the instant trust agreement with respect to the payment of the loan, when the Defendant pays the loan on behalf of the Defendant, the interest rate shall apply to the loan from the outside of the construction cost, etc., and when the loan does not accrue from the outside, the rate of 1.5% plus the rate of 1.5% per annum. However, on February 28, 1997, upon entering into a company loan transaction agreement with the Defendant on February 28, 1997, an agreement was made to apply the rate of 1.5% per annum to the loan from the trust account with the maturity of 3 years maturity bank bonds distribution rate, which is the average rate of 19.4% per annum, but again, the agreement was made on August 1, 1998 after reflecting the situation after the financial crisis.

Pursuant to ○○, the Defendant calculated interest on the money loaned to the trust account from the Defendant’s own account in accordance with the interest rate of 3-year corporate bond circulation rate plus 1.5%, regardless of the interest rate that the Defendant initially paid at the time of borrowing from the outside to the outside account, and calculated interest by applying the interest rate calculated by adding a certain rate to the average interest rate at the time of borrowing from the outside account within the scope of the above modified agreement to the outside account, after August 1, 1998.

B) According to the main text of Article 31(1) of the Trust Act, barring any special circumstance, any trust property shall not be deemed as its own property or shall not be acquired the right thereof, and any transaction made in violation of the above provision shall be null and void (see Supreme Court Decision 2005Da64552, Nov. 29, 2007). Meanwhile, in the case of a trust other than money trust, where the trustee is a trust company, the transaction made in violation of the above provision shall be deemed null and void. Meanwhile, in accordance with Article 12(1) of the Trust Business Act, “if it is clear that it is beneficial to the beneficiary or there is any other justifiable reason, it may be deemed as its own property with the permission of the court,” and the latter part of the proviso of Article 31(1) of the Trust Act, which provides that “The trust property may be deemed as its own property with the permission of the court.” In light of the fact that there is a very strict regulation under the latter part of Article

In this case, the Defendant, a trust company, did not raise funds necessary for each trust business, and borrowed funds expected to be required for each trust business in advance on the basis of the entire trust business and kept them in its own account, and added a certain interest rate to the loan interest rate when lending funds from the trust account to the trust account in its own account. In light of the legal principles as seen earlier, the above transaction of loan for consumption with interest interest shall be deemed null and void as contrary to Article 31(1) of the Trust Act.

However, even if the defendant borrowed funds from outside to a trust account through its own account and lent them to the trust account, as long as the funds borrowed from outside are last deposited in the trust account and are disbursed in the course of trust affairs, the amount equivalent to the expenses, such as interest, fees, and discount fees, etc. (hereinafter referred to as "loan expenses") incurred out of the outside while borrowing funds, constitutes the expenses incurred in the course of performing trust affairs, and thus, the defendant may claim for objection against the plaintiff pursuant to Article 19 of the Trust Contract in this case. In calculating the amount of compensation, the interest added by the defendant to the plaintiff should be excluded

C) Although the Defendant included the external loan in a trust account in its own account, and the interest rate attached to the loan expense is the necessary expenses or beneficial expenses incurred by the Defendant from borrowing the fund under more favorable conditions for the instant trust business as above, pursuant to Article 739(1) of the Civil Act, the Defendant asserts that the Defendant may claim for reimbursement of expenses equivalent to the above additional interest pursuant to the management of affairs pursuant to Article 739(1) of the Civil Act, but the Defendant is not a person who manages the trust business for the Plaintiff without any obligation, but is a person who manages the trust business for the Plaintiff pursuant to the instant trust contract, and accordingly borrowing the fund under the most favorable conditions within the extent of the Defendant’s ability for the instant trust business. Accordingly, the Defendant’s right to claim for reimbursement of expenses by the manager of affairs pursuant to Article 739(1) of the Civil Act is not recognized. Further, even if the Defendant borrowed the fund in the above manner and paid the additional expenses in addition to the interest, it shall not be deemed that the Defendant’s specific assertion and submission of the expenses are necessary or expenses for the funds borrowed.

Next, the fact that a trustee can raise funds under favorable terms based on the high level of foreign credit and can minimize expenses necessary for the borrowing of funds. Thus, even if the Plaintiff gains profits from raising funds under favorable terms for the Defendant, this is included in the scope of the benefits that the Plaintiff should have to enjoy pursuant to the trust contract of this case, and thus, it cannot be deemed that the Plaintiff obtained unjust enrichment without any legal ground equivalent to the difference between the interest accrued when the Plaintiff directly borrowed funds and the interest accrued when the Defendant borrowed funds. Moreover, it cannot be said that the amount of profits that the Plaintiff received is equivalent to the Defendant’s losses even if the Defendant provided the Plaintiff with the above favorable terms as above.

Therefore, the defendant's business management, the defendant's assertion of compensation for additional interest equivalent to unjust enrichment or return is without merit.

(c) Calculation of the amount of cost compensation;

1) Facts of recognition

6, 7, 9, 18 through 23, 25, 28 through 41, 44, and 45 (including each number, if any) of the statements in Section 6, 7, 9, 18 through 23, 25, 28 through 41, 44, and 45, and the whole purport of the arguments as a result of the appraisal at the trial of the name accounting firm

Even after the termination of the instant trust contract, the Defendant has paid expenses incurred in performing trust affairs according to the terms and conditions of the instant trust contract, such as entering into a contract for the sale of the instant building, or entering into a lease contract.

According to the statement of the balance of the Defendant’s land trust business: (a) as of June 30, 2010, the sum of the principal amount of the Defendant’s land trust proceeds from sale and lease while performing the instant trust business is KRW 34,253,68,768; and (b) the amount the Defendant spent or borne by the Defendant due to the instant trust business is KRW 34,760,988,166; (c) sales and management expenses, KRW 690,82,82, KRW 504,365,287,80,80,82, and KRW 487,80,82,80,000; (d) the sum of the principal amount of the principal amount of the land trust proceeds from sale and lease, etc.; and (e) the amount the Defendant spent or borne by the Defendant due to the instant trust business (excluding the land cost, construction expenses, discount charges, design service expenses, supervision service expenses, taxes, taxes, interest, and trust fees, etc.).

(A) The Defendant is not in charge of performing the trust affairs of this case, and there is no evidence to acknowledge the expenses equivalent to the above amount payable, even though the amount payable is included in the account statement for the balance of revenues and expenses, the amount payable is not sufficient to recognize that the above expenses are used or borne for performing the trust affairs of this case, and there is no other evidence to acknowledge the expenses equivalent to the amount payable)

○ The Defendant borrowed funds from outside to appropriate them in its own account for the performance and completion of the instant trust affairs, but again, appropriated the interest added to the external loan in the instant trust account as interest on the company account among the trust accounts. The funds borrowed from the trust account as above were used in the performance of the instant trust affairs.

Until March 30, 2005, the Defendant used the method of re-lending the trust account by setting the lending period to three months, calculating the interest on the maturity date and adding the principal to the principal. Accordingly, until March 30, 2005, the company account interest rate shall be added to the leased principal again every three months until March 30, 2005, and the lending period may be extended every one year from March 30, 2005, and the guidelines were changed to eliminate the re-lease method. Accordingly, the borrower of the company account shall not be added to the leased principal.

The amount of interest accrued to the company account appropriated by the Defendant in the instant trust account in the foregoing manner is KRW 32,126,395,373 as of July 30, 2010.

(ii)the calculation of borrowings;

A) The Defendant lent funds from the instant trust account to the instant trust account by adding interest to the external loan interest rate, and such lending is null and void in violation of Article 31 of the Trust Act. As such, the amount equivalent to the loan expense, out of the company account interest imposed by the Defendant on the Plaintiff, may be compensated for expenses incurred in the performance of trust affairs, but the exceeding portion may not be claimed for compensation as null and void.

However, the defendant borrowed funds from multiple creditors over a long-term period to include them in its own account, and the defendant's own funds also appropriated in its own account, thereby mixing various source funds into its own account. Accordingly, it is practically impossible for the defendant to prove loan funds from outside of its own account through specific evidence, such as the interest and fees actually paid, and thus, it is eventually impossible to prove the loan cost. Accordingly, the defendant calculated the weighted average loan interest rate (including expenses, such as fees, fees, etc.) based on each loan borrowed from its own account and borrowed from its own account per day, and the defendant bears the burden of the defendant borrowing funds for the trust account of this case by applying the weighted average loan interest rate (including expenses, such as fees, fees, etc.) based on each loan borrowed from its own account. It is reasonable to view that the calculated amount is the loan expense for which the defendant can claim compensation.

B) In addition to the loan outside of the exclusive account, the Defendant lent the loan to the instant trust account. In the event that the Defendant lends its own funds to the instant trust account, the Defendant is unable to perform other trust affairs or use the Defendant’s own business affairs. Accordingly, in order to carry out other trust affairs or the Defendant’s own business affairs, the Defendant must borrow additional funds from the outside in exchange for expenses equivalent to the above weighted average loan interest rate. Therefore, it is reasonable to deem that the Defendant bears the loan cost equivalent to the interest calculated in accordance with the above weighted average loan interest rate to borrow the above money for the trust account regardless of whether it is a own fund or an external loan. Therefore, in calculating the loan cost, the above weighted average loan interest rate shall be applied to the entire amount loaned to the instant trust account.

C) After March 30, 2005, the Defendant’s change in the Defendant’s loan disposal standards, the interest rate on the company account was not included in the leased principal every three months. However, the Defendant asserts that, in order to pay interest on the loan for the trust of this case, it constitutes the Defendant’s loan to borrow funds again and bear interest again, and also constitutes the Defendant’s loan cost, the Defendant’s loan interest accrued after March 30, 2005 and the Defendant’s loan cost should be calculated by adding the loan expense to the leased principal.

Therefore, even if the accounting standards of the defendant were modified after March 30, 2005, the interest rate on the loan borrowed by the defendant for the trust account of this case has continuously occurred, and as long as the plaintiff did not repay the interest payment cost to the defendant and the trust income of this case was insufficient to cover the expenses incurred, the defendant should have borrowed the loan again to repay the above interest, and accordingly the interest on the new loan has to be borne again. Thus, it is reasonable to calculate the loan expense by including the interest on the company account accrued after March 30, 2005 in the leased principal.

D) The Defendant asserts that the opportunity cost incurred by the Defendant in keeping the external loan in its own account and not managing the balance of the account in excess of a certain amount is also the expenses incurred in borrowing the funds for the instant trust account. However, aside from the fact that the Defendant, as the Defendant actually lent the funds from the trust account to the trust account in its own account, is recognized as the expenses incurred in borrowing the funds, the amount equivalent to the interest that the Defendant lost cannot be deemed as the expenses directly borne in order to borrow the funds for the instant trust account, on the ground that the Defendant maintained the balance exceeding a certain amount in its own account for the convenience of fund management. Thus, the above assertion is without merit.

E) The calculation of the loan financing cost and the interest rate to be deducted for the instant trust account, reflecting the foregoing contents, shall be based on the accounting firm’s appraisal. Accordingly, the Plaintiff and the Defendant submitted the service report of each of the accounting firms, and even in the trial, entrusted the pre-accounting firm with the appraisal.

First, with respect to the appraisal result in the trial of the Preliminary Accounting Corporation, the above accounting corporation sought an weighted average of the loan interest rates on the relevant day, based on the loan and repayment from September 9, 1996 to June 30, 209 to the president of the trust account of the defendant's total loan from September 9, 1996 to June 30, 2009, with the exception of the specific loan borrowed for a specific trust among the 302 trust accounts, including the trust account of this case, in which it is clear that the loan has been made for a specific trust, the amount of the remainder of the general loan except for the specific loan, the loan interest rate, the date of borrowing, the date of borrowing, and the date of repayment.

However, in calculating the loan cost with applying the above weighted average loan interest rate, the Preliminary Accounting Corporation assumed that the balance of each trust account in excess of the defendant's general loan amount at each time is raised from the defendant's own loan, and that the amount not exceeding this shall be assumed to have been raised from the outside loan. By February 13, 1998, the average loan interest rate prior to the point of February 13, 1998 is not calculated, and the loan cost is calculated by applying the above weighted average loan interest rate only to the amount assumed to have been raised from the outside loan. However, as long as the loan cost is to be deemed to have been incurred from the outside loan, it is unfair to calculate the loan cost by the above method.

In addition, after March 30, 2005, prior accounting firm calculated the loan expense by deeming that no interest has accrued again on the amount of interest and attempted interest accrued from the company account. However, as seen earlier, it is reasonable to calculate the loan expense by including the interest accrued from the company account after March 30, 2005 as well as the interest accrued from the company account and the interest accrued from the company account after March 30, 2005 in the leased principal. As such, the calculation of the loan expense in

On the other hand, the defendant calculated the weighted average loan interest rate in the same way as that of Preliminary Accounting Corporation based on the result of the above appraisal, and calculated the weighted average loan interest rate from September 9, 1996 to July 31, 2010; ② the above weighted average loan interest rate in the whole trust account is not distinguished from high-use funds and external loans; ③ the company account requests that the loans be calculated in the way of including the borrowed interest rate in the leased principal after March 30, 2005; accordingly, the lender accounting corporation calculated the weighted average loan interest rate from February 13, 1998 to June 30, 209; and the above weighted average loan interest rate from September 9, 1996 to February 12, 198 to the above weighted average loan interest rate from the trust account is not applied to the borrowed interest rate of the defendant's account in the same way as the loan of this case; and accordingly, the lender accounting corporation is also justified in the calculation of the loan interest rate of the above 3rd loan from the trust interest rate of this case.

F) According to the evidence Eul evidence No. 45, the loan expenses incurred from September 9, 1996 to July 31, 2010, computed by an accounting firm based on the weighted average loan interest rate in accordance with the above method.

27,903,467,948 won is recognized. Thus, even if the Defendant calculated the total amount of interest in the company account by applying the interest rate exceeding the above weighted average loan interest rate to the loans in the instant trust account, the Defendant can claim compensation for only the above KRW 27,903,467,948 as the loan cost, and the excess amount is null and void.

3) Sub-committee

Therefore, the Plaintiff’s expenses to be compensated to the Defendant are KRW 40,193,748,012, including net expenses up to June 30, 2010, 12,290,280,064 and loan expenses up to July 31, 2010, 27,903,467,948, as the Defendant seeks, and KRW 40,193,748,012.

D. Judgment on the Plaintiff’s assertion of mutual aid

1) The Plaintiff, without examining the feasibility of the instant trust agreement at the time of the conclusion of the instant trust agreement, caused the Plaintiff to enter into the instant trust agreement on the ground that the Defendant could increase the Plaintiff’s income of KRW 12,456,257,00 as the instant trust agreement without any sufficient examination of the feasibility of the project. After the completion of the project, the Plaintiff had the Plaintiff enter into the instant trust agreement, and had the Plaintiff incur losses by violating the fiduciary duty and fiduciary duty, such as managing trust property without permission and seeking to dispose of trust property at his discretion after the completion of the project. The amount of damages is equivalent to KRW 12,456,257,00, which is the revenue of the Defendant presented at the time of the conclusion of the instant trust agreement, and the Plaintiff’s amount should

However, there is no evidence to prove that the defendant violated the duty of loyalty and the duty of care as a trustee, thereby causing damage to the plaintiff. Therefore, the above assertion is without merit.

2) The Plaintiff, when he directly operates the parking lot among the instant buildings around 2001, received income of KRW 88,145,00 per month. The Defendant, after being ordered by the judgment in 2002, received only a fixed amount of KRW 13,50,00 per month from the Defendant’s D, and committed a breach of trust entrusted to the F& corporation established by the Defendant’s D, and due to such breach of trust, if the Plaintiff directly operated the parking lot from 2002 to August 2009, the amount of KRW 88,145,00 per month that occurred and the amount of KRW 13,50,00 per month from the Defendant actually acquired and the amount of KRW 7.8 billion should be deducted from the cost of compensation.

On the other hand, it cannot be deemed as a breach of trust merely because the Defendant leased the instant parking lot to the company established by the Defendant D, and according to the evidence No. 13, the Plaintiff occupied the parking lot among the instant building in 2001 and entered into a parking lot lease contract with 9 Samsung C&T Co., Ltd., the sum of the monthly rent specified in each of the above lease agreements is limited to KRW 42,380,00,00, and there is no other evidence showing that the Plaintiff was actually paid the fixed amount of rent or parking fee. This alone does not mean that the Defendant leased the said parking lot excessively at low price, and there is no evidence supporting that the Defendant violated the duty of loyalty and the duty of good faith as a trustee, and there is no reason to acknowledge that the Defendant did not incur damage to the Plaintiff. According to each of the above statements as stated in the evidence No. 38 through No. 41, the Defendant obtained the above provisional disposition from the Plaintiff in 2002 and did not have any reason to recognize it in the Plaintiff’s name.

E. Sub-committee

As seen earlier, it can be recognized that the Defendant’s expenses, etc. that the Plaintiff should receive from the Plaintiff under the instant trust agreement are the cause of 40,193,748,012. As such, the Plaintiff is obligated to pay the aggregate amount to the Defendant (the Defendant also claimed statutory delay damages from January 1, 2001 on the original cost of compensation, etc., but the damages for delay on the total amount is no longer claimed as the sum of additional costs incurred thereafter).

5. Conclusion

Therefore, the defendant received the above KRW 40,193,748,012 from the plaintiff, and thereafter the plaintiff is obligated to cancel the registration of the trust of each of the real estate of this case and to implement the procedure for the registration of the ownership transfer on December 31, 200 for the termination of the trust. Thus, the claim of this case is justified within the scope of the above recognition, and the remaining claims are dismissed for lack of reasonable grounds. The judgment of the court of first instance is unfair for different conclusions. Accordingly, it is so decided as per Disposition by the court of first instance by accepting part of the defendant's appeal and changing the judgment

Judges of the presiding judge;

Judges Kim Yong-ho

Judges Han Han-ra

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.