2014Da45140 Damages

A Stock Company

1. The Korea Deposit Insurance Corporation that is a trustee in bankruptcy of B banks;

2. The Korea Deposit Insurance Corporation that is a trustee in bankruptcy of C Bank;

Seoul High Court Decision 2013Na37083 Decided May 15, 2014

July 23, 2015

The judgment of the court below is reversed.

The judgment of the first instance is revoked and the lawsuit of this case is dismissed. All costs shall be borne by the plaintiff.

1. Review of the evidence and records adopted by the first instance court and the lower court reveals the following facts.

A. On August 9, 2005, the Plaintiff entered into the instant business agreement and the instant additional agreement with Cambodia (hereinafter referred to as the “instant development project”) and with the instant development project-related business agreement (hereinafter referred to as the “instant business agreement”) in order to promote the instant development project (hereinafter referred to as the “instant development project”). The Plaintiff entered into an additional agreement with I on August 10, 2005 and the Defendant Bank to determine the I’s governance and other matters in addition to the instant business agreement (hereinafter referred to as the “instant additional agreement”). The main content of the instant business agreement is to promote the instant development project through I and arrange for funding or financing, and in the instant business agreement, the Defendant Bank was allocated 60% interest accrued from the instant development project and the Plaintiff bank was allocated to the Plaintiff at the rate of 40% designated by the Plaintiff’s 60% interest in the instant development project and 40% interest in the instant agreement.

B. Progress of the instant development project and bankruptcy of the Defendant Bank

(1) The instant development project was originally planned to be carried out through six stages from 2005 to 2018. However, according to the original plan on December 31, 2010, according to the previous plan, the development project was discontinued without completion of the first phase project that should have been completed in 2007, even though the three phase project was in progress.

(2) From the Busan District Court, B Bank Co., Ltd. was appointed as the bankruptcy trustee of the said Bank on August 16, 2012, and C Bank was declared bankrupt on March 7, 2012 by the C Bank, respectively.

(c) Progress of the first instance trial;

(1) In the initial complaint of this case, the Plaintiff sought compensation for damages arising from the failure of the Defendant Bank to perform the duty to lend interest under the instant business agreement, and the claim for the modification of the purport of the claim and the cause of the claim on September 29, 2011 added the return of 60% I share to the above claim for damages due to the cancellation of the instant business agreement.

(2) On June 7, 2013, and Article 11(1) of the Business Agreement, the first instance court rendered a judgment dismissing a claim for the confirmation of non-existence of distribution claim on the ground of the cancellation of the business agreement in this case on the ground that the defendant bank or its management did not have fulfilled the duty of loan, etc., and there is no evidence that the defendant bank or its management committed a tort such as embezzlement, breach of trust, etc. in relation to the business agreement in this case. Thus, the claim for the cancellation of contract based on Article 11(2) of the Business Agreement is not reasonable, and the claim for the cancellation of contract based on Article 355 of the Debtor Rehabilitation and Bankruptcy Act is not reasonable.

D. Progress of the original judgment

(1) In the lower court on March 11, 2014, the Plaintiff added the Plaintiff’s claim seeking confirmation of non-existence of the instant business agreement and additional agreement to a claim seeking confirmation of termination or termination of the instant business agreement and additional agreement while maintaining the claim for confirmation of non-existence of the claim for distribution claim (n). The specific claim cause is that the instant business agreement and additional agreement are terminated as the nonperformance of obligations of the Defendant bank on the premise that the instant business agreement and additional agreement do not constitute a partnership agreement, and “the claim seeking confirmation of termination of the instant business agreement and additional agreement” was terminated as the instant agreement were automatically withdrawn from the partnership pursuant to Article 717(2) of the Civil Act on the premise that each of the above agreements constitutes a partnership agreement, and the said agreements were terminated. Moreover, the Plaintiff’s claim for confirmation of non-existence of the instant claim for distribution claim (n) on the premise that the instant business agreement and additional agreement were terminated as the nonperformance of obligations of the Defendant bank (i.e., the Plaintiff’s automatic withdrawal from the Defendant bank).

(2) Under the premise that the aforementioned multiple claims are in a selective consolidation relationship, the lower court cited the Defendants’ claim for confirmation of the absence of a claim for distribution of 60% of the operating profit under the instant business agreement on the ground that the instant business agreement and additional agreements were terminated automatically due to the Defendant bank’s bankruptcy.

E. Progress of the relevant lawsuit

(1) On November 18, 201, C Bank filed a lawsuit against the Plaintiff seeking the return of the loan pursuant to the instant business agreement against the Plaintiff and is currently in progress.

(2) On February 28, 2014, the Defendant Bank filed a lawsuit against the Plaintiff for the performance of the establishment registration of neighboring Cambodia’s land, which the Plaintiff provided as security pursuant to the instant business agreement, and is currently underway.

(3) Upon the bankruptcy of the Bank, the Plaintiff filed a report on the right to claim damages (i) and the right to claim the return of the advance payment for business profits (iii) in the first instance court of this case. The Plaintiff filed an objection with the Korea Deposit Insurance Corporation, which is the trustee in bankruptcy, filed an application for the judgment in claim allowance proceedings on bankruptcy bonds on 2012, 11, and 29, and is currently underway.

(4) The Plaintiff filed with Cambodia court a lawsuit seeking the return of 60% of the I's shares against a third party designated by the Defendant Bank on February 2014 regarding the claim for return (ii) of 60% of the I's shares withdrawn, which was initially claimed in the first instance court of this case, and is currently in progress.

2. Determination on the third ground of appeal and ex officio determination on the benefit of lawsuit

A. In a lawsuit for confirmation, there must be a benefit of confirmation as a requirement for protection of a right. The benefit of confirmation is recognized only when it is the most effective and appropriate means to obtain judgment from the defendant to eliminate the Plaintiff’s right or legal status and the apprehension and risk (see, e.g., Supreme Court en banc Decision 96Da11747, Oct. 16, 1997). Therefore, even though a lawsuit for confirmation may be brought, filing a lawsuit for performance does not have a benefit of confirmation because it is not a final solution of a dispute (see, e.g., Supreme Court Decision 2005Da60239, Mar. 9, 2006).

B. Examining the aforementioned facts in light of the aforementioned legal principles, first of all, the Defendants’ claim for confirmation of the absence of the right to claim distribution of 60% of the operating profit under the instant business agreement on the ground that the instant business agreement and additional agreement were terminated automatically due to the bankruptcy of the Defendant bank is unclear, and as long as the scope of the business profit can not be determined even if the occurrence of the business profit is anticipated, it cannot be determined as an uncertain future legal relationship or a final resolution of the dispute. Furthermore, in light of the record, it does not seem that there is a specific dispute between the Plaintiff and the Defendants as to the right to claim distribution of the operating profit in the instant case, and thus, it cannot be deemed a valid and appropriate means for the resolution of the instant dispute.

Nevertheless, the court below deemed this part of the lawsuit as legitimate and accepted it. The court below erred by misapprehending the legal principles as to the interest in confirmation, which affected the conclusion of the judgment. The ground of appeal assigning this error is with merit.

C. Furthermore, ex officio, we examine the interests of the lawsuit of this case concerning the remaining part of the lawsuit which the plaintiff tried selectively at the court below.

First of all, the part of the defendants' claim for confirmation of the absence of a claim for distribution of 60% of the business profit under the business agreement of this case on the ground that the business agreement of this case and the additional agreement were terminated as the non-performance of obligation of the defendant bank cannot be recognized for the above reasons.

Then, in light of the above amendment of the purport of the instant lawsuit and the progress of the relevant litigation, the claim seeking confirmation of the termination or termination of the instant business agreement and the additional agreement, it does not seem to be a valid and appropriate means to resolve the final dispute.

Ultimately, the part of the lawsuit of this case, as cited by the court below, as well as the part of the claim for confirmation of distribution as cited by the court below, shall be deemed unlawful as there is no benefit of lawsuit.

3. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal, the judgment of the court below is reversed. Since this court is sufficient to directly decide on the case, including the remaining parts of the lawsuit in this case which were not decided by the court below, the judgment of the court of first instance shall be revoked and the lawsuit in this case shall be dismissed. The total costs of the lawsuit shall be borne by the plaintiff. It is so decided

Justices Park Sang-ok

Justices Lee Sang-hoon

Justices Kim Chang-tae, Counsel for the defendant

Justices Cho Jong-hee