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(영문) 서울고등법원 2010. 3. 11. 선고 2009나70939 판결
[양수금][미간행]
Plaintiff and appellant

Plaintiff (Attorney Lee Ho-hoon et al., Counsel for the plaintiff-appellant)

Defendant, Appellant

Nonparty 1, the bankruptcy trustee, who is the taking over of the lawsuit by the bankrupt Spancop Co., Ltd.

The first instance judgment

Seoul Eastern District Court Decision 2009Kahap2222 Decided July 22, 2009

Conclusion of Pleadings

January 21, 2010

Text

1. The plaintiff's appeal is dismissed.

2. Upon the conjunctive claim added at the trial, the defendant shall pay to the plaintiff 1,210,094,531 won with 6% interest per annum from November 28, 2007 to March 11, 2010, and 20% interest per annum from the next day to the date of full payment.

3. The plaintiff's remaining conjunctive claims are dismissed.

4. 60% of the costs of lawsuit after an appeal is filed shall be borne by the Defendant, and the remainder by the Plaintiff, respectively.

5. Paragraph 2 can be provisionally executed.

Purport of claim and appeal

1. Purport of claim

A. The primary claim: The defendant shall pay to the plaintiff the amount of KRW 2 billion as damages, 6% per annum from July 28, 2006 to the delivery date of a duplicate of the complaint of this case, and 20% per annum from the next day to the day of full payment (the plaintiff added preliminary claim from the trial, but it seems that the plaintiff added preliminary claim from the trial to the first and third claims, but it is merely an allegation of an attack method rather than an independent claim. Thus, it is deemed that the plaintiff's different arguments as to damages for delay are claimed from July 28, 2006 to the other party).

B. Preliminary Claim: The Defendant shall pay the Plaintiff the amount calculated by adding the amount of KRW 1.98 billion to the return of unjust enrichment, the amount of KRW 6% per annum from October 14, 2004 to the delivery date of a copy of the instant petition of appeal, and the amount of 20% per annum from the next day to the date of full payment (the Plaintiff added the conjunctive claim at the trial).

2. Purport of appeal

The judgment of the first instance shall be revoked. The defendant shall pay to the plaintiff the amount of KRW 2 billion, the amount of KRW 6% per annum from July 28, 2006 to the delivery date of a copy of the complaint of this case, and 20% per annum from the next day to the day of full payment (the amount of KRW 200 million stated in the purport of the claim of the judgment of the first instance shall be deemed to be a clerical error of KRW 2 billion).

Reasons

1. Quotation of judgment of the first instance;

The reasoning of the court's reasoning concerning this case is as follows: ① the defendant corporation's PoscoF was corrected to "PoscoF" (hereinafter "PoscoF") as "PoscoF"; ② the defendant was declared bankrupt by the Seoul Central District Court on November 30, 2009; ② the defendant was appointed as the trustee in bankruptcy of PoscoF and taken over the lawsuit of this case. ③ The plaintiff claimed damages of KRW 2 billion in the first and second preliminary claims (the plaintiff at the first and the first preliminary claims, and the third preliminary claims due to the declaration of intention of refusal of performance and the third preliminary claims due to the delay of performance of the PoscoF's cause attributable to the third preliminary claims; ② the second and second claims for additional damages due to the delay of performance can not be seen as being a combination of claims for the damages due to the delay of performance, and the second and second preliminary claims for additional damages due to the delay of performance of the 200 billion won in the first and second claims.

2. Additional matters to be determined;

A. Judgment on the conjunctive assertion for the primary claim

(1) Determination as to the first preliminary assertion

(A) The plaintiff's assertion

Along on March 22, 2007 after the termination of the re-sale contract of this case, the sales contract of this case was to purchase the real estate from Nonparty 2 and Nonparty 3 again on March 22, 2007, the above sales contract clearly expresses its intention to refuse to perform the obligation to transfer ownership to the third party on the premise that the sccof sells the real estate of this case to the third party. The sccof has the obligation to pay the Plaintiff damages amounting to the above 2007,000,000 won calculated by deducting the presumed market price of the real estate of this case from 5,339,389,05,050 won at the time of the declaration of refusal of performance, or the amount equivalent to the damages amounting to 89,905,469 won, which is the claim for damages or the indemnity amount for delay, the Defendant has the obligation to pay from sccof on January 15, 2009 to the Plaintiff.

(B) Determination

According to the evidence Eul evidence No. 3, on March 21, 2007, when the Austria and the non-party 3 intend to purchase the mortgage claim on the non-party 2 and the non-party 3's real estate of this case with the real estate of this case in the amount of KRW 1.5 billion on June 15, 2007, a down payment amount of KRW 500 million shall be paid, and the above property shall be paid immediately after the disposal of the above property. The fact that the above sale price was paid in full can be acknowledged that the Austria agreed to receive the registration of ownership transfer for the real estate of this case. However, it cannot be readily concluded that the Austria expressed its intent to clearly refuse to perform the obligation to transfer the ownership of the real estate of this case by disposing of the above property, and it is insufficient to acknowledge it solely on the statement of evidence No. 11-1 through 4 of this case, and there is no sufficient evidence to acknowledge it otherwise, and therefore, the plaintiff's assertion that the plaintiff was not obligated to cancel the sale registration of this case.

(2) Determination as to the second preliminary assertion

(A) The plaintiff's assertion

Even if the obligation to transfer the ownership of the instant real estate by the Poscop did not reach an impossible performance, the obligation to pay KRW 89,905,469 to the Poscop and the obligation to transfer the ownership of the instant real estate to the Poscop for the Posco is a simultaneous performance relationship. Since the obligation to transfer the ownership of the Poscop on the premise that the Posco deposits the said money, is in a delayed performance state, the obligation to transfer the ownership of the Poscop on the premise that the Poscop deposits the above money, the Defendant is liable to pay the Plaintiff the damages claim for the 15,339,389,050, which is presumed to be the market price of each of the instant real estate, and the damages for delay from the expiration of the maximum period for performance.

(B) Determination

Inasmuch as there is no evidence to acknowledge that the Loticom deposited 89,905,469 won as the deposited person, the Plaintiff’s assertion on this part is without merit, which is premised on the delayed performance of the obligation to transfer ownership of the instant real estate in relation to the payment of the above amount to the Titcop of the Titcop in the concurrent performance relation.

B. Determination on the conjunctive claim

(1) The parties' assertion

(A) The plaintiff's assertion

Even if the obligation to transfer the ownership of the instant real estate became impossible without any legal cause, the Austria was obligated to return the above amount of unjust enrichment that it acquired from the Locom for payment on March 8, 2004, including KRW 435 million, and KRW 1.98 million, collected from the Loland on October 14, 2004, and KRW 524 million,082,950, collected on November 2008, and KRW 524,939,082,950, and the legal interest equivalent thereto, which were collected on November 1, 2008, on the other hand, while the UN Tcom suffered from the same amount as the amount of unjust enrichment, the Plaintiff is obligated to return all of its claims related to the instant sales contract to the Plaintiff as unjust enrichment. The Plaintiff is obligated to refund the above amount of KRW 80,000,000,000,000,000 from November 4, 2004.

(B) Defendant’s assertion

Absciscis (formerly changed: 300,00 common shares of Titcis Fire Insurance Co., Ltd.) held by Titcis on or around September 12, 2001, 80,000 common shares of Titciscis (formerly changed: : 80,000 common shares of Titciscisciscisciscisciscisciscisciscisciscis, without the consent of Titciscisciscisciscisciscisciscisciscisciscisciscisciscisciscisciscisciscisciscisciscisciscisciscisiscisciscisciscisisciscisiscisciscisciscisciscisisciscisciscisciscisciscisciscisciscisciscisciscis stis stisciscis stiscisciscis stiscisciscis stisciscis stis stiscisciss.)

(2) Determination

(A) Comprehensively taking into account the facts cited earlier, Gap evidence 1-1, Eul evidence 2-1, Eul evidence 12-2, and Eul evidence 2-2, the plaintiff received non-party 3's non-party 2's non-party 1's non-party 2's non-party 2's order of compulsory commencement of auction (Ui District Court 2006 Mata 6070) on May 25, 2006, ordered non-party 1's non-party 3's non-party 2's non-party 1's non-party 2's non-party 1's non-party 9's non-party 2's non-party 1's non-party 1's non-party 1's non-party 2's non-party 1's non-party 1's non-party 2's non-party 1's non-party 3's non-party 2's non-party 2000 billion won's non-party 3.

Inasmuch as an obligor is unable to perform his/her obligations without any cause attributable to both parties in a bilateral contract, benefits already fulfilled can be claimed in accordance with the legal doctrine of unjust enrichment (see Supreme Court Decision 2008Da9865, 9862, May 28, 2009). According to the above facts, the obligation to transfer the ownership of the instant real estate was impossible without any cause attributable to both parties (see Supreme Court Decision 2008Da9865, 9862, May 28, 2009), unless it is proved that the obligor provided the ownership transfer registration of the instant real estate at KRW 40,905,469, and the obligation to pay KRW 89,000,000,000 for KRW 9,000,000,000,000,000,000,000,000,000,000 won).

(On the other hand, the plaintiff asserted that the Austria received dividends of approximately KRW 1.980 million from the Dlimland in lieu of the balance of KRW 865 billion and the amount equivalent to the above collection amount of KRW 524,082,950,000,000. However, there is no evidence to acknowledge that the Austria collected KRW 524,082,950,000,000. As seen earlier, it can be recognized that the Austria received dividends of KRW 4.3 billion in lieu of the payment of the balance of KRW 865,00,000,000,000,000,000,000 won, and it cannot be viewed that the Austria received dividends of KRW 1.988,000,000 from the Eth Company. Thus, the plaintiff's assertion in this part is without merit).

Therefore, the Defendant is obligated to pay legal interest and delay damages calculated by the ratio of 1,210,094,531 won and 20% per annum under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings, from November 28, 2007 to March 11, 2010, where the Defendant’s obligation to transfer ownership of the instant real estate was not fulfilled, to the Plaintiff who acquired the claim for return of unjust enrichment against the sccop under the instant sales contract.

(B) It is insufficient to recognize that the Defendant’s defense of set-off and the statement of Eul evidence Nos. 10 through 19 alone was sufficient to acknowledge that the Austria suffered a loss equivalent to KRW 3,244,00,000, which is the market price of the above shares, by having the Austria offered 800,000 common shares of the two-use fire insurance company held by the Austria as a security to the foreign exchange bank and offered as a security to the Austria, and there is no other sufficient evidence to acknowledge it. Thus, the Defendant’s above assertion is without merit without any need to further examine it.

3. Conclusion

Therefore, the plaintiff's main claim is dismissed as it is without merit, and the judgment of the court of first instance is just, and the plaintiff's appeal is dismissed as it is, and the supplementary claim added at the court of first instance is justified within the above scope of recognition, and it is dismissed as it is without merit. It is so decided as per Disposition.

[Attachment]

Judges Sung-dae (Presiding Judge) (Presiding Justice)

Judges Kim Do-do-transfer unable to sign and seal by

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