Seoul High Court Decision 200Na11446 decided May 1, 200

Hanam Comprehensive Development Co., Ltd. (Attorneys Ha Man-man et al., Counsel for the plaintiff-appellant)

August 11, 2011

1. The plaintiff's claim is dismissed.

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

The defendant shall pay to the plaintiff 676,153,973 won with 5% interest per annum from July 23, 2010 to the service date of a copy of the complaint of this case, and 20% interest per annum from the next day to the day of complete payment.

1. Basic facts

(a) Acquisition of executive titles;

1) In accordance with the Seoul High Court Decision 2001Na76795 decided May 14, 2004, the Plaintiff deposited KRW 8,000,000 as the guarantee for the cancellation of provisional disposition in the Seoul Central District Court Decision 10168 (Seoul District Court Decision 96Kahap271) as the guarantee for the cancellation of provisional disposition in the case of provisional disposition prohibiting real estate disposal (hereinafter “instant deposit”).

2) On August 31, 2007, the Defendant provisionally attached the Plaintiff’s right to claim for recovery of the deposit money of this case to the Suwon District Court 2007Kadan103439, with the amount of KRW 8,000,000 against the Plaintiff as the preserved bond.

3) Under the Seoul Central District Court 2008ta-Ba1148 (hereinafter “instant distribution procedure”), the distribution of the said deposit was made on June 27, 2008. At this time, KRW 721,351,460 in the Suwon-si District, which was first and second in order, and KRW 7,166,147,536 in the Defendant and KRW 112,485,904 in the non-party were paid to the non-party in the second order. Since the Defendant was the creditor of provisional seizure at the time, the above execution court did not pay the above dividends to the Defendant and deposited the dividends.

4) The Defendant filed a lawsuit against the Plaintiff as Suwon District Court 2008Gahap7379 on the merits of the instant provisional attachment case. On December 15, 2009, the Seoul High Court 2009Na69267, which was the appellate court of the instant case, brought a voluntary conciliation (hereinafter “voluntary conciliation”) between the Plaintiff and the Defendant as follows.

The defendant (the plaintiff of this case) shall pay 7,00,000,000 to the plaintiff (the plaintiff of this case) up to December 18, 2009. If the defendant fails to pay the above amount by the above payment date, the damages for delay calculated by adding 20% per annum from the day after the date of payment to the day of full payment. 2. The plaintiff waives his right to 33,750 shares of the defendant company owned by the plaintiff with payment of the amount specified in paragraph 1 from the defendant, and delivers his share certificates to the defendant. 3. The remaining claims of the plaintiff are waived. 4. The total costs of the lawsuit are borne by each party.

(b) Payment of dividends;

1) On July 16, 2010, upon the formation of the instant voluntary adjustment, the additional distribution of the instant distribution procedure was conducted on July 16, 2010. In the said additional distribution procedure, the judicial assistant officer distributed dividends of KRW 7,166,147,536 to the Nonparty’s claim claim amounting to KRW 8,00,000 ( KRW 7,000,000) and paid KRW 13,088,853 ( KRW 125,574,757, KRW 112,485,90 distributed dividends of KRW 8,00 to the Nonparty on June 27, 2008, the remaining amount of KRW 166,147,536, out of KRW 166,57,536, KRW 1257,57, KRW 12,485,90, KRW 112,490, which was distributed on June 27, 2008.

2) On July 23, 2010, the Defendant claimed the payment of dividends to the executing court. On the same day, the Defendant received KRW 7,676,153,973 from the executing court.

(c)the agreement of the plaintiff and the defendant;

On the other hand, on July 16, 2010, prior to the receipt of the above dividends by the Defendant, the Plaintiff and the Defendant agreed not to hold any civil or criminal liability after the mutual agreement with the following (hereinafter “instant agreement”) on July 16, 2010, with respect to all disputes related to the sales contract of the Dongcheon-gu Seoul Metropolitan Area Integrated Delivery Complex (hereinafter “instant agreement”).

The Seoul High Court 209Na69267 damages mediation clause (2), and the Plaintiff (A) provided that “The Plaintiff (A) waives the Plaintiff’s right to 33,750 shares of the Defendant and delivers its share certificates to the Defendant in exchange for payment of the amount set forth in paragraph (1) from the Defendant (B).” However, the Plaintiff delivered 34,00 shares (attached Securities List Nos. 41 through 74,00 shares) that are inconsistent with the waiver of share certificates and the duty of delivery (34 shares of the attached Securities List No. 41 through 74,00 shares) to B. This is inconsistent with the contents of the mediation, and the Plaintiff is also liable for all the civil and criminal cases following this, and thus, the Plaintiff (A) received the entire share certificates from the Defendant (B) and returned them to the Defendant (B). However, the Plaintiff did not transfer the share certificates to Party A in the future. 100 shares in the future.

[Ground of recognition] The fact that there is no dispute, Gap's evidence 1 through 7, Gap's evidence 18-1, 2, Eul's evidence 2 and 3, the purport of the whole pleadings and arguments

2. Determination on this safety defense

On July 16, 2010, the Plaintiff and the Defendant did not raise any objection to the dividends that the Defendant would receive, and no longer hold the Defendant liable for a mutual civil or criminal liability, and thus, the Defendant’s objection to the purport that the Plaintiff cannot file a claim for return of unjust enrichment.

However, as seen earlier, the content of the agreement of this case was modified according to the agreement between the Plaintiff and the Defendant and the content of the obligation to deliver share certificates to be performed as a repayment of the obligation to pay money as stipulated in the instant adjustment clause, and thereby, it is deemed that the obligation to pay money under Paragraph (2) of the instant adjustment clause has been performed, and there is no content as to the amount of dividends to be received as a performance of the said obligation to pay money. In addition, while the agreement of this case was a comprehensive agreement that the Plaintiff and the Defendant would no longer dispute with respect to the dispute surrounding the conclusion of the contract, it cannot be deemed that such agreement includes the agreement that the Plaintiff cannot claim for return of unjust enrichment if the Defendant received dividends in excess of the legitimate amount of dividends, and there is insufficient evidence to acknowledge that there was an agreement by the Defendant on the part of the Defendant’s assertion, and there is no other evidence to acknowledge otherwise.

Therefore, the defendant's defense of the above principal safety is without merit.

3. The plaintiff's assertion and judgment

A. Summary of the plaintiff's assertion

Although the dividends that the Defendant is obligated to pay to the Plaintiff according to the instant distribution procedure are limited to KRW 7,00,000,000, the Defendant received from the court of execution the remaining surplus of KRW 676,153,973 without any legal cause, and thus, the Defendant is obliged to return the above unjust enrichment amounting to KRW 676,153,973 and delay damages to the Plaintiff.

B. Determination

1) As to whether the obligation to return unjust enrichment exists

6,153,973 won received by the Defendant in excess of 7,000,000 won of the principal of the instant deposit is the amount obtained by deducting the withheld tax from the interest accrued on the portion of 7,00,000,000 won out of the principal of the instant deposit. However, the interest on the principal of the deposit is affiliated with the principal and reverted to the subject to whom the principal of the deposit is reverted. The repayment of KRW 7,00,000,000, which is finalized as the amount to be distributed to the Defendant in the instant distribution procedure, occurs when the Defendant actually receives the amount of KRW 7,00,000,000. Thus, the interest accrued up to the said KRW 7,000,000 shall be deemed to be reverted to the Plaintiff who is in the status of the claimant to claim the deposit. Nevertheless, the Defendant received KRW 676,153,973 without any legal cause, and thus, the Plaintiff suffered damages equivalent to the above amount, barring special circumstances.

2) As to the defendant's defenses

A) Summary of offset defense

The defendant raises a defense to the effect that the damages for delay incurred by the above 7,00,000,000 won shall be offset against the plaintiff's above unjust enrichment return claim amount by the automatic claim.

B) Whether damages for delay incurred

(1) As recognized earlier, the Plaintiff is liable to pay the Defendant the amount of KRW 7,00,00,000 and the amount of KRW 20% per annum from December 19, 2009 to the date of full payment. The Defendant’s payment of KRW 7,00,000 according to the dividend procedure was effective upon the receipt on July 23, 2010 (the foregoing KRW 7,000,000 has been appropriated for the principal amount of KRW 7,00,000,000 under the instant voluntary adjustment clause, and there is no dispute between the parties as to whether the amount was appropriated for the principal amount of KRW 7,00,000,000,000 under the instant voluntary adjustment clause). The Plaintiff is liable to pay the Defendant the amount of KRW 7,00,000,000 per annum from December 19, 209 to 208,209.

D. The Plaintiff argues to the effect that the obligation to pay money under Paragraph (1) of the instant voluntary conciliation clause and the obligation to deliver share certificates under Paragraph (2) are simultaneously performed. Since the Defendant did not perform or provide for the performance of its obligation to deliver share certificates, it does not bring about any damages for delay on the obligation to pay money under Paragraph (1).

However, Article 1(1) of the Voluntary Adjustment Clause of this case merely states that the period during which the obligation to pay the money is due shall be December 18, 2009 and that the obligation to pay the damages for delay shall accrue if the obligation to pay the money is not paid within the above period, and does not state the purport that the Defendant bears the obligation to pay the damages for delay on the condition that the Defendant performed the obligation to deliver the share certificates or provided the obligation to pay the damages for delay. Thus, it cannot be deemed that the voluntary Adjustment Clause

Even if the voluntary adjustment clause(1) and (2) of this case are in a simultaneous performance relationship, as long as the obligation to pay damages for delay is specified in the above Paragraph(1), the meaning of simultaneous performance relationship can refuse payment unless it is delivered and redeemed with share certificates. It cannot be interpreted as including the purport that the obligation to pay damages for delay is not imposed even if it goes against the above language and text.

Therefore, the plaintiff's above assertion is without merit.

C) Sub-decision

If so, the plaintiff's above claim for return of unjust enrichment and the defendant's above claim for delayed payment are all claims with no fixed due date at the same time, and thus both claims of the plaintiff and the defendant were set off on July 23, 2010 where the plaintiff's above claim for return of unjust enrichment was established. The defendant's above claim for delay payment was set off with the defendant's automatic claim, and it is apparent in the record that the legal brief dated February 17, 201, stating the defendant's declaration of intent to set off against the equivalent amount of the plaintiff's above claim for return of unjust enrichment, reached the plaintiff on February 22, 2011. Thus, the plaintiff's above claim for return of unjust enrichment was extinguished in full within the extent equal to the defendant's above claim for delay payment. Accordingly, the defendant's defense of set-off has merit

3. Conclusion

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

Judges Hak Jin-Jon (Presiding Judge)