Sung Forestry Construction Co., Ltd. (Attorney Park Dong-dong, Counsel for defendant-appellant)

Trup Construction Co., Ltd. (Law Firm Jeonm Name, Attorney Kim Tae-tae, Counsel for the plaintiff-appellant)

October 4, 2011

1. The defendant shall pay to the plaintiff 220,184,943 won with 5% interest per annum from June 25, 2010 to September 14, 2010, and 20% interest per annum from the next day to the day of full payment.

2. The costs of the lawsuit are assessed against the defendant.

3. Paragraph 1 can be provisionally executed.

The same shall apply to the order.

1. Basic facts

A. Conclusion of the instant construction contract

On December 2005, the Plaintiff, Newsan Comprehensive Construction Co., Ltd. (hereinafter “Newjin Construction”), and Newjin Construction Co., Ltd. (hereinafter “Newjin Construction Co., Ltd. (hereinafter “Newjin Construction”) concluded a contract for construction of New Construction Co., Ltd. (hereinafter “the instant construction contract”). On December 26, 2005, Jeju and Korea Culture and Arts Co., Ltd. entered into a contract with the instant joint contractors to jointly perform the construction works by means of joint performance (hereinafter “instant construction contract”).

(b)Composition of joint contractors;

At the time of entering into the instant construction contract, the Plaintiffs and the New Jin Construction drafted a standard agreement on joint supply and demand with each other regarding the mutual rights and obligations and the operation of joint projects, as follows:

- - The following:

1) The representative of the instant joint contractor shall be a new construction, and the representative shall represent the joint contractor against the project owner and the third party, and the representative shall have the authority to manage the property of the joint contractor and to request for payment, etc.

2) A new contractor shall be organized by investing 51% of the new construction, 25% of the Plaintiff, and 24% of the comprehensive construction in the new industry.

3)Members of the consortium shall be jointly and severally liable for the performance of their contractual obligations to the ordering entity and, if any profit or loss has been incurred after fulfilling the contract, shall be apportioned or apportioned in accordance with the investment ratio.

(iv)Members of the joint contractors shall not transfer their rights and obligations to third parties, and shall not withdraw from the joint contractors by bidding or by the date of completion of the contract concerned, without the consent of all the ordering persons and all the members.

(v)Members of the joint contractors shall be jointly and severally liable for any defects in the work concerned after the dissolution of the joint contractors.

(c) Suspension of new construction works and remaining construction works of the plaintiff and the new integrated construction works;

1) While performing the instant construction, the new construction was no longer carried out on the ground that management conditions are difficult on or around January 10, 2010 while performing the instant construction. The Plaintiff and the new construction was a member of the said joint supply and demand organization and succeeded to the construction that was carried out by new construction in accordance with the provisions of the joint supply and demand standard agreement, and completed construction works among the instant construction, and civil engineering works around May 7, 2010, respectively.

2) Meanwhile, from Jeju City, the new construction was fully paid the cost of the new construction under the part that it performed, and the claims in the separate sheet are part of the cost of the new construction as to the part that the Plaintiff and the new integrated construction succeeded to the construction that it performed by the new construction.

D. The defendant's compulsory execution

The Defendant, as a creditor of the Newjin Construction, deposited KRW 220,00,000 as the amount of the claim, and KRW 220,00,000 as the amount of the new construction, and KRW 220,00 as the amount of the new construction, and KRW 40,00 as the claim for the new construction of the Korea Culture and Arts Center located at Jeju-si (number omitted), with the claim for seizure, and upon receipt of the provisional seizure order on February 2, 2010, the Defendant deposited KRW 20,00 as the Jeju District Court 20,00,000 as the amount of the deposit as the new construction, and the Defendant deposited KRW 220,00 as the amount of the deposit to the court 20,000 upon receipt of the above order for provisional seizure on May 24, 2010 (hereinafter referred to as the “instant deposit”) and the above order for provisional seizure on KRW 2039,349,294,209.

On the other hand, on September 22, 201, the Plaintiff and the New Industrial Complex Construction held a joint venture on September 22, 201 to dismiss the Plaintiff as the representative of the joint venture, and appointed the Plaintiff as the managing member of the instant joint venture.

[Ground of recognition] The fact that there is no dispute, Gap evidence 1 through 12 (including each number in case of additional number), the fact-finding inquiry and reply to the proposal made by this court, the purport of the whole pleadings

2. Determination as to the defendant's defense prior to the merits

The defendant alleged that the lawsuit of this case is unlawful because the claim of this case was paid out of the money of this case after being ordered to seize the claim of this case and the distribution procedure was completed in whole after being ordered to attach the claim of this seizure. However, where the real right holder of the right to claim the deposit of this case is a joint contractor who is not the defendant, like the plaintiff's assertion, the defendant takes profits through compulsory execution against the other person's property, and the plaintiff who is the real right holder can cause losses to the extinction of the claim of this case. Thus, it is difficult to view that the plaintiff's claim of this case is unlawful as it

3. Determination as to the cause of action

A. Applicable legal principles

A joint supply and demand company basically has the nature of a partnership under the Civil Act (see Supreme Court Decision 2005Da16959 delivered on August 25, 2006), and a claim of a partnership belongs to all partners jointly. Thus, one of the partners cannot claim payment from the debtor of the partnership at his own discretion, barring any special circumstance. Thus, in a case where a creditor of one of the partners is an executory debtor of the partnership's claim for compulsory execution against the claim of the partnership with the partner as an executory debtor, the other partner may file a lawsuit by a third party as an act of preservation and seek the denial of compulsory execution (see Supreme Court Decision 97Da4401 delivered on August 26, 1997).

B. Determination

1) In light of the above facts, a standard agreement on joint supply and demand formulated jointly by the Plaintiff and the Newjin Construction (hereinafter “Plaintiff”) and new Jinjin Construction jointly, the Plaintiff’s side and new Jinjin Construction jointly signed a joint supply and demand agreement on the joint supply and demand agreement on the joint supply and demand of the instant construction in accordance with their respective investment ratio and the joint supply and demand agreement on the joint supply and demand of the instant construction. The Plaintiff’s side and new Jinjin Construction, as a joint contractor, submitted a standard agreement on the joint supply and demand of the instant construction agreement with the members as well as the instant construction agreement on the joint supply and demand of the instant construction agreement, and further, they did not perform the instant construction as a member of the joint supply and demand agreement on the joint supply and demand of the Plaintiff’s side and new Jinjin Construction, and concluded the instant construction agreement between the Plaintiff’s joint supply and demand agreement on the joint supply and demand of the instant construction agreement and concluded the instant construction agreement between the Plaintiff’s new construction agreement and the Plaintiff’s joint supply and demand agreement.

2) Therefore, the claim for the construction price against the proposal under the contract of this case is a claim of the above joint supply and supply company which is a partnership under the Civil Act, and thus, it cannot be enforced by the defendant, the creditor against the new construction. Thus, the defendant's provisional attachment decision against the claim for the construction price of KRW 220,00,000, which is the property of the plaintiff and the new construction association, and the claim attachment and assignment order based thereon are null and void because the defendant's provisional attachment decision against the claim for the construction price of KRW 220,184,943, which is the property of the plaintiff and the new construction association is the property owned by the third party, not the debtor. Thus, the defendant's appropriating the deposit amount of KRW 220,184,943, based on the provisional attachment, the provisional attachment and assignment order of this case which is null and void, without any legal grounds, obtains profits equivalent to the amount, thereby causing considerable damage to the above joint supply and supply company composed of the plaintiff and the new

4. Judgment on the defendant's assertion

A. As to the assertion that partnership is not an association

1) The defendant's assertion

On March 16, 2006 and February 20 of the same month, the Defendant entered into a separate construction agreement which takes precedence over the standard construction contract with the Plaintiffs on March 16, 2006 regarding the instant construction. The contents of the agreement include ① delegation of the authority corresponding to their respective shares to the new construction; ② the Plaintiffs agree to pay to the new construction within 3 days the remainder after receiving the construction cost due to their shares of the instant construction (Article 6(1)); ③ the Plaintiffs agreed that the new construction has the authority and responsibility for the instant construction (Article 5(8)); ④ that the new construction has the authority and responsibility with respect to the instant construction (Article 7(1)); ⑤ that the Plaintiffs actively cooperate with the new construction at the time of the issue of new construction (Article 8(3)2); and that the Plaintiffs are not a joint construction agreement between the new construction agreement and the new construction agreement (Article 9(3)2).

2) Determination

In full view of the purport of the evidence No. 1-1 and No. 2 of the evidence No. 1-2 and the purport of the entire arguments, new construction made out each construction agreement with the plaintiffs on March 16, 2006 and around the 20th of the same month with respect to the instant construction work. The contents of the above construction work execution agreement shall take effect more than the agreement entered into between new construction and the plaintiffs, and the management committee specified in the joint supply and demand management agreement shall delegate to the new construction company the authority corresponding to the plaintiffs' share ratio for the efficient performance of the construction work. New construction is guaranteed to the plaintiffs. Since new construction is difficult for the new construction company to conclude the construction contract and the plaintiffs to deposit the price received from the ordering company with the new construction company in cash within 3 days after deducting 5% of the earnings, and it is difficult for the plaintiffs to conclude the new construction contract with the new joint supply and demand agreement with the plaintiffs to recognize that the new construction contractor is the plaintiffs' joint supply and demand agreement with the new construction company as stated above, as well as the new construction contractor agreement with the plaintiffs' new construction contractor as new construction contractor.

B. As to the assertion that a union’s assets are not assets

1) The defendant's assertion

The defendant asserts that the attached list bonds are separate construction works from the plaintiffs and the new construction has been paid the construction price according to the ratio of shares in the passbook of each juristic person from the Jeju city. Therefore, the new construction bonds separate from the plaintiffs' claim for the construction price, or the shares of the association cannot be viewed as the property of the association. The seizure of the shares of the association members is effective for the rights to receive future dividends and return of shares of the union members. Therefore, the defendant's provisional attachment is effective for the claim for the construction price against the Jeju city which is the actual dividend of the union.

2) Determination

Even if the plaintiffs and the new construction has received the construction cost according to their respective shares in the passbooks of each juristic person, the above facts alone do not constitute a divided claim against the plaintiffs related to the partnership and the new construction, and it is difficult to regard the claim in the attached list as a share in the new construction against the partnership, and there is no evidence to acknowledge that the claim in the new construction was a divided claim, or that the defendant was a compulsory execution against the shares in the new construction association. Therefore, the above assertion by the defendant is without merit.

C. As to the assertion that unjust enrichment should be refunded according to the actual equity ratio of the plaintiffs

1) The defendant's assertion

Since the ratio of shares in new construction is 90%, and the plaintiffs have only 5% shares, the amount of unjust enrichment claimed by the plaintiffs is only 5% of the amount claimed by each plaintiff.

2) Determination

As seen earlier, the fact that the compulsory execution of this case is unlawful as a compulsory execution against the property of the association, and the above share ratio agreement is effective only between the plaintiffs and the new construction, and it is not a ground for the defendant to assert in the external relation with the association. Therefore, the defendant's above assertion is without merit.

5. Conclusion

Therefore, the defendant is obligated to pay to the plaintiff 220,184,943 won of unjust enrichment and the amount equivalent to 5% of the annual amount prescribed by the Civil Act and 20% of the annual amount prescribed by the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings from the next day to the date of full payment, as requested by the plaintiff, from June 25, 2010, following the date when the defendant paid the deposit of this case to the defendant, as requested by the plaintiff, as the result of the unjust enrichment of the plaintiff. Thus, the defendant is obligated to pay the plaintiff 220,184,943 won and the amount equivalent to 20% of the annual amount prescribed by the Act on Special Cases concerning

Judges Jeon Nam-tae (Presiding Judge) Kim Tae-sikon