Plaintiff

Korea Asset Trust Corporation

September 10, 2009

Seoul Central District Court Decision 2008Gadan240171 Decided January 8, 2009

1. Of the judgment of the court of first instance, the part against the plaintiff ordering payment is revoked.

2. The defendant shall pay to the plaintiff 16,812,347 won with 5% interest per annum from July 11, 2008 to October 8, 2009 and 20% interest per annum from the next day to the day of full payment.

3. The plaintiff's remaining appeal is dismissed.

4. One-fifth of the total litigation costs is borne by the Plaintiff, and the remainder is borne by the Defendant, respectively.

5. Paragraph 2 can be provisionally executed.

The judgment of the first instance shall be revoked. The defendant shall pay to the plaintiff 20,000,100 won with 20% interest per annum from the day following the delivery of a copy of the complaint of this case to the day of complete payment.

1. Basic facts

The court's explanation on this part is citing this part of the reasoning of the judgment of the court of first instance as it is in accordance with the main sentence of Article 420 of the Civil Procedure Act.

2. The assertion and judgment

A. The plaintiff's assertion

As the cause of the claim in this case, the Plaintiff asserts that the filial forest company has the right to return the contract bond of KRW 500 million against the company prior to the bankruptcy, the right to vicarious payment of the sales price of KRW 179,320,460, and the right to damage more than KRW 179,320,460 due to default. The Defendant (the National Asset Trust Company prior to the change: the National Asset Trust Company) comprehensively succeeded to the status of the trustee pursuant to the land trust contract in this case from the company prior to the bankruptcy and transferred the trust property. Thus, the Defendant is liable to pay the Plaintiff, the creditor of the collection order in this case, as part of the collection amount, the amount of KRW 20,100,10

B. Determination

(1) Whether the sales agency contract of this case or the monetary payment obligation due to the termination is succeeded to

In cases where a new trustee is replaced by another trustee pursuant to Articles 11 through 13, 15, and 17 of the Trust Act, as well as where the former trustee is replaced by another trustee upon termination of his/her duties and appointment of a new trustee according to the determination of the trust act, the new trustee shall comprehensively succeed to the status of the trustee in accordance with the principle of replacement of the trustee prescribed in Articles 26 and 48 of the Trust Act. In this case, the third person may exercise not only the rights of the former trustee who is the party to the contract, but also the new trustee may exercise the rights of the claims already incurred prior to the replacement of the trustee, within the scope of the trust property (see Supreme Court Decision 2005Da5812, 5829, 5836, Jun. 1, 2007).

On October 20, 198, the company prior to bankruptcy entered into the sale agency contract of this case with the effective forest company as the trustee of the land trust contract of this case. However, on August 11, 2000, after notifying the effective forest company of the termination of the sale agency contract of this case on the ground that the contract term of this case was expired, etc., and on July 12, 2002, the company prior to bankruptcy entered into a contract with the defendant for acquisition of the land trust business with the purport that the former company would take over the land trust business of this case, including the park cemetery business of this case. The former company prior to bankruptcy entered into a contract with the truster on July 23, 2002, the truster, the non-party 1 (Supreme Court Decision), and Yangyang Park, the trust foundation, the truster and beneficiary, and the former trustee were able to change the trust property of this case with the trust contract of this case with the consent of the former trustee and the trust property of this case, and the defendant comprehensively agreed to the status of the former trustee and the trust property of this case.

As to this, the defendant asserts that the contract of this case was not succeeded to the defendant, a new trustee, due to the completion of the contract of this case as of July 23, 2002 at the time when the pre-trustee of the land trust contract of this case terminated his duties, that is, the contract of this case as a contractor under the pre-trustee's land trust contract of this case at the time of the amendment of the land trust contract and succession agreement of this case, and that the status of the pre-trustee of the pre-trustee of this case cannot be succeeded to the defendant. Thus, if the pre-trustee of this case did not continue the contract of this case at the time of the amendment of the land trust contract of this case and the succession agreement of this case, if the pre-trustee of the pre-trustee of this case did not succeed to the status of the contract of this case as a contractor under the pre-trustee of this case as of July 23, 2002, the defendant's assertion that the pre-trustee of this case can be exercised to the new trustee within the extent of trust property, can not be accepted to the defendant.

(2) The existence of damage claim, etc. against the company before the bankruptcy of the expired forest company

(A) Whether the obligation to return the contract deposit exists

The plaintiff asserts that the Native forest enterprise paid KRW 500 million to the company prior to the bankruptcy for the implementation of the sales agency contract of this case, and that even if the sales agency contract of this case was terminated, it is terminated due to the intention of the contract period or the cause attributable to the company prior to the bankruptcy, and that the contract bond should be returned to the Native forest enterprise or that the company prior to the bankruptcy promised to return the contract bond to the Native forest enterprise, the Native forest enterprise has the right to return the contract bond against the company prior to

However, the fact that the efficiencies paid KRW 500 million to the company prior to the bankruptcy at the time of the contract for the sale of this case by proxy is without dispute between the parties. Meanwhile, at the time of the contract for the sale of this case by proxy, the efficienant company pays KRW 500 million to the company prior to the bankruptcy at the time of the contract for the sale of this case by proxy, but where the efficiant company fails to sell 6,600 won out of the total 11,000 period of the sale by August 30, 1999, the above contract deposit belongs to the company prior to the bankruptcy. The contract period of the sale by proxy is 60% from October 20 to 12, 198, which is the date of the contract for the sale by proxy of this case, and the above efficiant company notifies the company of the termination of the contract of this case by 60% prior to the expiration of the contract period of the sale by proxy contract of this case by 100%.

The plaintiff asserts that the sale contract of this case was concluded without completion of the funeral facility of this case, or that the sale contract of this case was attributable to the company prior to bankruptcy, including the non-party 2 corporation's default and the bankruptcy of the company prior to bankruptcy, which is the non-party 2 corporation in charge of the cemetery construction, and the suspension and delay of graveyard construction, etc., and that the sale contract of this case was terminated in the process, and therefore, the above contract deposit should be returned to the effective forest company. However, although the above contract deposit of this case was asserted to be returned to the effective forest company, it is insufficient to recognize that the effective forest company's failure to sell 60% of the total sale cemetery normally due to the cause attributable to the company prior to the bankruptcy, and there is no other evidence to acknowledge it, the plaintiff's above assertion is without merit.

In addition, the Plaintiff recognized that the Defendant or the former company would have the obligation to return the contract bond to the former company by way of the balance sheet, etc. prepared for the acquisition of the land trust contract including the instant cemetery business by the Defendant and the former company, and that the former company would return the contract bond to the latter company by 00 million won, and at least, the former company would have the effect of returning the contract bond to the former company by the former company under the direction of the non-party 3, etc. The former company would not be deemed to have any obligation to return the contract bond to the latter company by 90 billion won, notwithstanding the fact that the former company would not have any obligation to return the former company's contract bond to the latter company by 90 billion won prior to the end of the period of sale contract, even if the former company would not have any obligation to return the former company bond under the former company's bankruptcy contract by 100 million won prior to the end of the period of sale contract, and the latter company could not be deemed to have any obligation to return the former company bond under the current bankruptcy contract bond agreement.

(B) Whether there exists an obligation to pay a sales agency fee

1) The Plaintiff asserts that the Defendant and the company prior to the bankruptcy set up expenses, such as the balance sheet, etc. on the statement of accounts for the business for the acquisition of the land trust business including the instant park cemetery business, or the sales agency fees for the company prior to the bankruptcy under the sales agency contract of this case, shall be KRW 630,100,000. In fact, the Plaintiff asserts that the sales agency fees for the company prior to the bankruptcy under the sales agency contract of this case shall not fall short of the sales agency fees for the company prior to the bankruptcy, and that the unpaid sales agency fees for the company prior to the bankruptcy exceed KRW 179,320,460, or at least KRW 20,100,00 the Plaintiff

According to the statement No. 3-4 and No. 5 of this case, the defendant and the company prior to bankruptcy stated 630,100,000 won as the sales agency fee for the effective company on May 31, 2002 for the acquisition of the land trust business including the instant park cemetery business, although it is true that the items of expenses on the balance sheet of the business settlement prepared around May 31, 2002 for the acquisition of the land trust business including the instant park cemetery business and the items of the revenue and expenditure of the trust business revenue and expenditure statement, there is no specific assertion or proof as to the actual existence of the sales agency fee that the company prior to bankruptcy should pay to the effective forest company.

However, at the fourth date for pleading of this case, the Defendant is liable for the unpaid sales commission amounting to 16,812,347 won (i.e., KRW 484,60,00 - 467,787,653 won - 467,00 won - 467,787,653 won - 467,000 won - 467,787,653 won). Meanwhile, according to the purport of Gap evidence 3-5 and the whole arguments, the amount of trust property under the land trust agreement of this case to be paid by the company prior to the bankruptcy to the effective forest enterprise is KRW 484,60,00,000,000 for the total amount of the trust property of this case and the trust contract of non-party 1,606,000,000,000 won under the trust contract of this case to the effective forest enterprise prior to the bankruptcy.

2) As to this, the Defendant: (a) although the sales agency fee under the sales agency contract of this case is to be paid KRW 80,000,000 at the time of payment of the remainder of the sales contract; (b) however, if the sales contract is terminated after August 14, 200, the sales agency fee paid to the effective forest enterprise is to be refunded; (c) 104.5 cases where the remainder of the sales contract is additionally paid after August 14, 200; (d) 50 cases where the sales agency contract was terminated after the remainder of the sales contract was paid only; and (e) 42.5 cases where the total sales contract was terminated after the remainder of the sales contract was paid, and thus, the sales agency fee to be additionally paid to the effective forest enterprise is 2,090,000 won (per 104.5 million won x 2 million won). On the other hand, the Defendant asserts that the sales agency fee to be refunded from the effective forest enterprise is more than the amount of the sales bond to be refunded or 1 million won (i.

However, according to the overall purport of the statement and pleading of evidence No. 3-2 and No. 14-1 and No. 2 of this case, the company prior to the bankruptcy at the time of the contract for the sale of this case and the effective company shall pay 800,000 won out of 1 million won per cemetery to the effective company at the time of the contract for the sale of this case, the remaining 200,000 won shall be paid at the time of the payment of the balance. If the contract for the sale of this case is terminated, the effective company shall return the commission received from the company prior to the bankruptcy, and if the contract for the sale of this case is not refunded, the contract for the sale of this case shall be deducted at the later time from August 14, 200 to April 208. The defendant's assertion that the balance of the contract for the sale of this case under the contract for sale of this case was paid to the effective company without any justifiable reason for the cancellation of the contract for sale of this case, and there is no reason for the cancellation of the contract for the sale of this case.

(C) Existence of liability for damages due to default

The plaintiff asserts that the company's loss occurred to more than KRW 0,00 by failing to perform the sales agency business under the sales agency contract of this case, due to the reasons attributable to the company prior to the bankruptcy, such as the default of the company prior to the bankruptcy, the suspension of graveyard construction, delay, etc., which is the contractor in charge of the housing site construction, and the company prior to the bankruptcy. Thus, it is not sufficient to recognize that the company prior to the bankruptcy did not normally perform the obligations under the sales agency contract of this case. The evidence submitted by the plaintiff is insufficient to find that the company prior to the bankruptcy did not normally perform the obligations under the sales agency contract of this case, and there is no evidence to acknowledge otherwise. Furthermore, the plaintiff's assertion as to the specific loss to the filial company due to the default of the company prior to the bankruptcy

C. Sub-committee

Therefore, the defendant is obligated to pay to the plaintiff 1,923,218,670 won, the trust property of the land trust contract of this case, within the scope of KRW 16,812,347, which is the trust property of the land trust contract of this case, and damages for delay calculated at the rate of 5% per annum under the Civil Act from July 11, 2008, the day following the delivery date of a copy of the complaint of this case, which is the day following the delivery date of the copy of the complaint of this case until October 8, 2009, which is deemed reasonable for the defendant to resist the existence and scope of the duty to perform.

3. Conclusion

Therefore, the plaintiff's claim of this case is reasonable within the above scope of recognition, and the remaining claims are dismissed without merit. Since the judgment of the court of first instance is unfair, the part of the plaintiff's appeal is accepted in part, and the part of the judgment of the court of first instance against the plaintiff corresponding to the above recognized money is revoked in the judgment of the court of first instance, and the plaintiff is ordered to pay the above money to the defendant, and the remaining appeal of the plaintiff is dismissed as it is so decided.

Judges Yang Sung-ju (Presiding Judge)