PPD Co., Ltd. (Attorney Choi Jin-jin, Counsel for the defendant-appellant)

New Construction Co., Ltd.

July 11, 2012

1. It is confirmed that there does not exist any obligation based on each construction contract of the Plaintiff (Counterclaim Defendant) against the Defendant (Counterclaim Plaintiff), April 16, 2003, May 1 of the same year, and October 1 of the same year.

2. The defendant (Counterclaim plaintiff)'s counterclaim of this case is dismissed.

3. The costs of lawsuit are assessed against the Defendant-Counterclaim Plaintiff by aggregating the principal lawsuit and the counterclaim.

The main office is as set forth in Paragraph (1).

Counterclaim: The plaintiff (Counterclaim defendant; hereinafter the plaintiff) shall pay 20 million won to the defendant (Counterclaim plaintiff; hereinafter the defendant) and 5% per annum from April 28, 2009 to the service date of a duplicate of the counterclaim of this case, and 20% per annum from the next day to the day of complete payment.

1. Basic facts

A. On December 3, 2010, the Plaintiff was a corporation established for the purpose of food manufacturing business, etc., and the registration of dissolution has been completed pursuant to Article 520-2(1) of the Commercial Act, and the Defendant is a corporation established for the purpose of construction business, etc.

B. The Plaintiff concluded the instant construction work on April 16, 2003 (the construction cost of KRW 59,000), May 1 of the same year (the construction cost of KRW 498,00,000), and October 1 of the same year (the construction cost of KRW 620,000) of the construction cost of KRW 620,00,000 (the value-added tax of KRW 63,00,000) for three occasions on the land outside of five parcels owned by the Plaintiff (the site of this case is the site of this case, and the factory of this case is the site of this case). The Defendant concluded the instant construction work around October of the same year.

C. The Plaintiff paid KRW 30,000,000 to the Defendant on July 10, 2003, and KRW 10,000,000 on November 26 of the same year as the construction price of this case.

D. According to the provisional attachment order 204Kahap170 on May 8, 2004, the defendant filed an application for provisional attachment against the land and factory of this case as the secured claim, and the registration of provisional attachment No. 6802 on the 12th of the same month, which was received No. 6802 on the 19th of the same month, was completed, and the registration of provisional attachment No. 6802 on the 19th of the same month was completed. At the defendant's request, the registration of provisional attachment was completed on the 1950,000,000 as the secured claim, and the registration of mortgage establishment was completed on the 19th of the same month of the same registry office with the defendant as the secured claim.

E. On September 30, 2005, the instant land and factory were sold in the voluntary auction procedure, and on November 2, 2005, a distribution schedule was prepared to distribute KRW 84,732,54 as the mortgagee of the said provisional attachment, and around that time, the said provisional attachment registration and the registration of the establishment of the said provisional attachment were cancelled on the grounds of sale due to the voluntary auction on November 4, 2005.

F. On March 23, 2009, in the case of Daejeon High Court (Cheongju District Court) 2008Na123, on which the Defendant asserted the delivery of the factory, etc. of this case to the Defendant as the owner of the factory, etc. of this case, the Ora Chang Credit Union (hereinafter the Ora Chang Credit Union) paid 80,000,000 won to the Defendant on March 23, 2009, and at the same time the Defendant delivers the factory, etc. of this case to the Ora Chang Mutual Union. On April 27, 200, the Ora New Mutual Union paid 80,000 won to the Defendant according to the above adjustment.

[Reasons for Recognition] Facts without dispute, Gap evidence 1-1, 2, 3, Gap evidence 2-1, 2-2, Gap evidence 3-2, Gap evidence 4-2, Gap evidence 5-2, 3, and 4-2, Gap evidence 5-3, and the purport of the whole pleadings

2. Claims and judgments (the principal lawsuit and counterclaim claims shall be deemed to be filed simultaneously);

A. The parties' assertion

On the ground that the Plaintiff’s obligation for the construction cost of this case has expired by prescription, the Defendant sought confirmation of the absence of such obligation against the Defendant. The Defendant asserts to the effect that, even if the registration of the provisional seizure was cancelled on the site and factory of this case, the above provisional seizure remains effective on the claim for payment of dividends deposited for execution, and thus, the extinctive prescription is not underway, and even if it is proceeding, the Plaintiff renounced the prescription benefit by accepting the obligation

B. Whether the instant construction price liability was established

According to the above facts, the construction cost of this case between the plaintiff and the defendant is equivalent to 620,00,000 won and 10% of value-added tax. The defendant's 40,000,000 won (=30,000,000 + 10,000,000 won) paid by the plaintiff, 84,732,544 won paid as a mortgagee in the above distribution procedure, and 80,732,5444 won (=40,000,000 + 40,732,540,0000 +840,000 won + 732,5440,000,0000 won + 682,000,000 won, 682,0005, 205, 2006, 2004, 2005, 2004, 2007, 20046, 2007,4005).

C. Whether the instant construction price liability has expired

1) Whether the extinctive prescription has expired

The period of extinctive prescription is three years pursuant to Article 163 subparag. 3 of the Civil Act as the claim for the construction cost of this case constitutes a claim concerning a contracted person's construction work. The period of extinctive prescription is three years pursuant to Article 163 subparag. 3 of the Civil Act, and the defendant's registration of this case's site and factory was completed on May 12, 2004 as the claim for the construction cost of this case's provisional attachment was cancelled on Nov. 4, 2005, since the above provisional attachment registration was cancelled on Nov. 2, 2005. Thus, the extinctive prescription of the obligation for the construction cost of this case goes from Nov. 5, 2005, which is the date following the cancellation of the above provisional attachment registration. The defendant's response to the principal claim of this case, submitted a written reply against the plaintiff to the plaintiff, and the existence of the claim for the construction cost of this case against the plaintiff, and it is obvious that the construction price of this case was extinguished after the expiration of prescription, barring special circumstances.

2) Whether the effect of provisional attachment preservation exists

While the preservation of execution by provisional seizure continues to be effective, the interruption of prescription by provisional seizure shall also continue while the preservation of execution by provisional seizure remains effective (see Supreme Court Decision 2010Da88019, Jan. 13, 201, etc.).

In this case, the effect of the above provisional seizure preservation on the right to demand a payment of dividends, and the creditor of provisional seizure registered prior to the decision to commence the auction becomes entitled to participate in dividends as a matter of course even if he did not demand a distribution in the voluntary auction procedure (see Articles 268 and 148 subparagraph 3 of the Civil Execution Act). If the distribution schedule has been prepared and confirmed as to the claim interrupted by the person holding the provisional seizure who participated in the voluntary auction procedure, the exercise of the right by the person holding the provisional seizure is terminated, so long as the provisional seizure registration is cancelled as the distribution schedule against the person holding the provisional seizure becomes final and conclusive during the voluntary auction procedure, the effect of the preservation of the provisional seizure is also deemed to have been terminated, and the extinctive prescription will continue again from the time of the termination thereof (see, e.g., Supreme Court Decision 2008Da8980, Mar. 26, 2009). Therefore, this part of the defendant's assertion is rejected.

3) Whether approval of liability and waiver of prescription interest have been granted

The approval of an obligation, as a ground for waiver of the benefit of extinctive prescription, is established when an obligor expresses his/her intent to recognize the existence of an obligation to the obligee. The interpretation of whether there exists an expression of intent to that effect shall be made objectively and reasonably in accordance with logical and empirical rules, and the common sense of society, so as to conform to the ideology of social justice and equity, by comprehensively taking into account the substance, motive and background of the act or expression of intent, the purpose and genuine intent of the parties to achieve by said expression of intent, etc. (see, e.g., Supreme Court Decision 2009Da92784, Jul. 28, 2011).

In the case of this case, it is apparent in the record that the Plaintiff asserted that the amount of KRW 80,00,000, which was paid to the Defendant by Orsagu in the lawsuit of this case should be deducted in calculating the remaining amount of the construction payment obligation of this case. However, inasmuch as the Plaintiff asserted the extinction of the statute of limitations for the construction payment of this case at the same time, it is nothing more than the Plaintiff’s assertion of the legal effect that a part of the construction payment obligation of this case was extinguished due to Orsgu Newcom, a third party in the process of claiming the extinguishment and non-existence of the statute of limitations, and it is difficult to view that the Plaintiff had an intent to approve the obligation to waive the statute of limitations interest, and there is no other evidence to support that the Plaintiff

D. Sub-determination

Therefore, the obligation to pay the construction price of this case does not exist after the prescription of November 6, 2008, which was three years from November 5, 2005 after the date following the cancellation of the registration of provisional seizure. Furthermore, as long as the defendant claimed the counterclaim against the plaintiff to claim the payment of the construction price of this case against the plaintiff, the benefit of confirmation of the non-existence is recognized.

3. Conclusion

If so, the plaintiff's claim of this case is reasonable, and the defendant's claim of this case is dismissed as it is without merit. It is so decided as per Disposition.

Judges Park Jong-hee (Presiding Judge)

1) As to the instant factory, the registration of preservation of ownership in the Plaintiff’s name was completed due to the entrustment of registration of provisional seizure on May 12, 2004 based on the decision of provisional seizure.

2) Although there may be room to view that the extinctive prescription run from the day following the date when the distribution schedule became final and conclusive, it is reasonable to view that the extinctive prescription run from the day following the date when the cancellation registration was cancelled in the instant case where only a part of the distribution schedule became final and conclusive,