207Na100874 Loans

Samsung Life Insurance Co.

1. B who is a trustee in bankruptcy of a bankrupt A corporation;

2. The Hanjin Industries Co., Ltd.;

Seoul Central District Court Decision 2006Gadan88935 Decided September 13, 2007

September 5, 2008

January 23, 2009

1. The plaintiff's appeal against the defendants is dismissed in entirety.

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

3. Article 2 of the judgment of the court of first instance was amended as follows in accordance with the Plaintiff’s intent of claim reduction in the trial.

The plaintiff's bankruptcy claim of KRW 2,397,709,050 against A, which is bankrupt, shall be confirmed.

1. On the part of the bankruptcy trustee B (hereinafter referred to as the "defendant"), who is the taking over of the lawsuit against the defendant Hanjin Heavy Industries Co., Ltd. (hereinafter referred to as the "Defendant Hanjin"), the defendant's taking over the lawsuit against the plaintiff is jointly and severally described below 38,405,279,359 won (the defendant stated on June 19, 2008 as KRW 38,405,279,360 in the application for change of the purport of the claim and the cause of the claim, but is a clerical error in the calculation, the above amount is deemed to be the above amount; hereinafter the same shall apply) and the plaintiff is jointly and severally described as KRW 2,464,156,759 (the defendant stated as KRW 2,464,156,760 in the above written statement but is a clerical error in the calculation, and thus, the above amount is deemed to be the above amount, and the plaintiff's payment of the plaintiff's money to the plaintiff 290.7%

2. For Defendant Han-jin, Defendant Han-jin pays to the Plaintiff money of KRW 38,405,279,359 as well as KRW 35,941,122,60 as well as KRW 35,90 as of KRW 35,941,122,60 as of April 205; KRW 19.23% as of April 20, 2005; KRW 2,397,709,050 as of KRW 19% as of June 26, 2005 until the delivery date of a copy of the complaint; and KRW 20% as of KRW 35,941,122,60 as of the above money; and KRW 19% as of June 26, 2005 until the full payment date. (At all, Defendant Han-jin is liable for performance under contract; and liability for damages due to preliminary default)

(1) The plaintiff reduced the purport of the claim against the defendants in the first instance.

1. Of the judgment of the court of first instance, the part concerning the primary claim against the defendant shall be revoked. The defendant shall pay jointly and severally with the defendant Han-jin the amount of KRW 2,464,156,759 out of KRW 38,405,279,359 as set forth in paragraph (2) below and the amount of KRW 2,397,709,050 out of KRW 2,397,709,050 per annum from June 26, 2005 to the delivery date of the copy of the complaint of this case and KRW 20% per annum from the next day to the full payment date.

2. The part of the judgment of the court of first instance as to the defendant Han-jin shall be revoked. With respect to the plaintiff as the primary and conjunctive defendant Han-jin shall pay to the plaintiff 38,405,279,359 won and 35,941,122,600 won per annum as to April 20, 2005; 9.23% per annum as to the following day; 19% per annum as to the service date of the copy of the complaint of this case; 2,397,709,050 won from the next day to the full payment date; and 19% per annum as to the delivery date of the copy of the complaint of this case from June 26, 2005 to the delivery date of the copy of the complaint of this case; and 20% per annum as to the full payment date from the next day to the full payment date.

(1) The appeal was reduced in accordance with the reduction of the purport of the claim against the Defendants in the first instance.

1. Basic facts

The court's reasoning in this part is as follows: ① Defendant A Co., Ltd. (the transferee of the case was appointed as trustee in bankruptcy on November 28, 2006 by the court's declaration of bankruptcy from this court on November 28, 2006; hereinafter referred to as Defendant A) "A Co., Ltd. (the transferee of the case was declared bankrupt by the Seoul Central District Court on November 28, 2006, but the lawsuit of this case was pending in the court of first instance, and the defendant was appointed as trustee in bankruptcy on November 28, 2006 and taken over the proceedings; hereinafter referred to as "A")"; ② "Defendant A" in paragraph (1) of the first instance judgment with "A" collectively; ② "Defendant A" in paragraph (4) of the first instance judgment with "4 of the first instance judgment" as "development project agreement of this case"; ③ "No. 97 of the first instance judgment with "No. 196 of the Civil Procedure Act" as "No. 250 of the attached loans of the court of the first instance" as "No 197. 45.

2. Determination on the claim against the defendant transferee

The court's reasoning in this part is as follows: ① The defendant A shall use the "A" of the judgment on the claim against the defendant transferee of the first instance judgment as "A"; ② the "development agreement of this case" in the 8th th th th th 18th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th.);

3. Determination as to the claim against Defendant Han-jin

(a) Grounds for claims;

① On October 14, 2002, A was ordered to suspend sale by the head of the Gu, and the construction was not completed on February 2, 2004, which is the scheduled date of occupancy, and the construction was discontinued due to the shortage of project expenses, and A was declared bankrupt on November 28, 2006, and there was a cause of transfer of project implementation rights under Article 18(1) of the Development Project Agreement.

(2) In addition, in the case of notifying the occurrence of reasons such as the impossibility of achieving the objective of the development project agreement, the content of the instant development project agreement was agreed to be transferred under various private laws or administrative laws related to the instant development project agreement, even if there is no separate legal act.

③ Accordingly, Defendant Han-jin not only has the obligation to accept the project implementation right of this case under Article 18(1) of the instant development project agreement, but also has been notified on August 23, 2005 that he would actually take over the project implementation right of this case and accepted the project implementation right.

④ On the other hand, Defendant Han-jin, as well as the obligation to acquire the project of this case, intentionally rejected the acquisition of the right to implement the development project that can be solely deemed to have the obligation to complete the construction pursuant to Article 7 of the instant development project agreement and did not perform the obligation to complete

⑤ Accordingly, Defendant Han-jin is obligated to take over and repay the Plaintiff’s business expenses, the principal and interest of loans, and the intermediate loan obligations of the buyers pursuant to Article 18(2) of the instant development project agreement upon the acquisition of the project implementation right of this case (as regards the intermediate loan obligations of multiple buyers, the obligation to guarantee under Article 4(3) of the Business Agreement shall also be borne). In the preliminary case, Defendant Han-jin incurred damages for which the Plaintiff was unable to receive the said money due to Defendant Han-jin’s nonperformance of the obligation to acquire the development project loan and the intermediate loan even though it was possible for the Plaintiff to receive the development project loan and the intermediate loan, and Defendant Han-jin is liable for damages to the Plaintiff.

B. Existence and acceptance of the duty to accept the project implementation right by Defendant Han Jin

According to Gap evidence No. 14, Gap evidence No. 26-1, Eul's evidence No. 4, 6, 7, and 8, and each statement of evidence No. 26-2, where the purpose of this Agreement cannot be achieved between the Seoul District Court and Hanjin-jin's certificate, etc., the defendant Hanjin-jin's transfer of the right to participate in the development project under this Agreement to Gap's various judicial or administrative law related to the implementation of the development project including the status and right of Gap's contract under this Agreement without any separate legal act, and it is difficult for Han-jin-jin to obtain the right to participate in various acts necessary for the above transfer of the right to participate in the development project from the plaintiff and Hanjin-jin-jin to the owner of the land and to obtain the right to participate in the development project under this Agreement without the consent of the owner of the land and the right to participate in the implementation of the project under this Agreement.

According to the above facts, first of all, Defendant Han-jin cannot be deemed to have acquired the project implementation right automatically from Defendant Han-jin solely with the development project agreement of this case and the litigation telephone settlement report of this case, and Defendant Han-jin merely takes over the project implementation right of this case from the Plaintiff for the project of this case, and thus, the Plaintiff’s assertion on this point is without merit.

In addition, even if Defendant Han-jin accepted the project implementation right on August 26, 2005 and requested cooperation by sending the above document to A, the right to implement the project cannot be deemed automatically transferred to Defendant Han-jin. However, since the transfer of all the rights, such as the right in public law and the right in real estate, etc. incidental to the right to implement the project, should be completed finally, as long as Defendant Han-jin refused the transfer of the right to implement the project, the right to implement the project cannot be deemed to have been transferred only by the declaration of intention of Defendant Han-jin, and therefore, the Plaintiff’s assertion on this point is without merit.

(c) Whether to guarantee part payments loans;

Upon the termination of a contract with the plaintiff, Gap, and Eul-jin (Evidence 23), the plaintiff may claim for the repayment of loans to Gap at the time of the termination of the contract for sale in lots. The plaintiff and Han-jin agreed to repay all the loan principal and interest accrued to the plaintiff (Article 4). Upon the conclusion of the development project agreement of this case, the plaintiff and Han-jin, etc. shall deposit the proceeds of this case into the passbook opened in their name at the time of the conclusion of the contract for sale in lots, and upon setting the order of withdrawal of the money deposited in the above passbook, Gap decided to request in writing with the defendant Han-jin's written consent. If the contract for sale in lots is cancelled, it is difficult to determine the order of withdrawal as to the sale in lots to return the money to the plaintiff.

D. As to the obligation to complete the responsibility

On August 12, 2002, the Plaintiff, the Defendant Han-jin, and the Defendant Han-jin concluded the instant development project agreement (Evidence 1) with the Defendant Han-jin on August 12, 2002 (Article 7), and the construction period is 15 months after the commencement of the construction project (Article 8(4)) as seen earlier. However, considering the overall purport of arguments in the items of evidence Nos. 2 and evidence Nos. 3 and 18, Article 2 of the contract on construction (Evidence 2) concluded between the Defendant Han-jin and the Defendant Han-jin should complete the construction within 15 months from the commencement date of the construction project. Article 9 of the contract on construction of the instant land and superficies is an exception to the completion date of the construction project, and thus, it does not constitute an exception to the Plaintiff’s obligation to complete the construction project, and thus, it does not constitute a breach of the Plaintiff’s obligation to complete the construction project’s construction project without any specific reason for the completion of the construction project.

4. Conclusion

Therefore, the plaintiff's primary claim against the defendant transferee is dismissed as it is without merit, and the conjunctive claim is accepted as it is with merit, and all of the plaintiff's claims against the defendant Han-jin are dismissed as it is without merit. Since the judgment of the court of first instance is just in conclusion, the plaintiff's appeal against the defendants is dismissed as it is without merit. However, the decision of the court of first instance is delivered with the decision that the plaintiff's bankruptcy claim of KRW 2,397,709,050 should be decided upon the reduction of the plaintiff's claim in the court of first instance, and it is so decided as per Disposition.

Judges Ansan-do;

Judges Jin-dam

Judges Lee Dong-chul

A person shall be appointed.