2016Da255057 Claims, etc.

A Housing Reconstruction Project Association

B

Seoul High Court Decision 2015Na2050932 Decided September 1, 2016

January 12, 2017

The part of the lower judgment’s claim for reimbursement is reversed, and that part of the case is remanded to the Seoul High Court. The remaining appeals are dismissed.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. As to the claim for indemnity

A. (1) The court below rejected the Plaintiff’s conjunctive assertion that the Plaintiff subrogated for the Defendant’s obligation of the instant loan to Hyundai Construction on the premise that the lender of the instant loan was Hyundai Construction Co., Ltd. (hereinafter “Modern Construction”). As to the Plaintiff’s primary assertion that the Plaintiff subrogated for the Defendant’s obligation of the instant loan to Hyundai Construction, the Plaintiff’s primary assertion that ① the lender of the instant loan belongs to the National Bank (hereinafter “National Bank”) and ② since the right to manage and dispose of the instant deposit claims in the account in the judgment of the court below belongs to Hyundai Construction rather than the Plaintiff, it is reasonable to deem that the Plaintiff was not the Plaintiff, but the principal agent who subrogated for the instant loan obligations due to the offset of the deposit claims in the instant account and the instant loan claims in the judgment of the court below. (2) The lower court rejected the Plaintiff’s primary assertion that the Plaintiff and Hyundai Construction completed the settlement of the instant loan claims as well as the instant loan claims, even if the Plaintiff and the Plaintiff were to exercise such settlement agreement against the Defendant’s subrogation agreement.

B. Examining the relevant legal principles and the evidence admitted by the court below, the judgment of the court below that rejected the Plaintiff’s primary assertion on the ground that the lending entity is a national bank, and that the lending entity subrogated for the obligation of the instant loan through offset disposition is Hyundai Construction is justifiable. In so doing, the court below did not err by misapprehending the legal principles on the interpretation of disposal documents and the determination of the contracting party

C. However, the lower court’s determination on the conjunctive assertion is difficult to accept for the following reasons. (i) Interpretation of a juristic act clearly establishes the objective meaning that the parties gave to the act of expression. In the event that the objective meaning is not clearly revealed, it shall be reasonably construed in accordance with logical and empirical rules and the common sense of social norms and transaction norms so that it conforms to the ideology of social justice and equity, by comprehensively taking into account the motive and background leading up to the juristic act, the purpose and genuine intent to be achieved by the parties by the juristic act, and transaction practices (see, e.g., Supreme Court Decision 2010Da26769, Nov. 11, 2010).

2) Review of the reasoning of the lower judgment and the record reveals the following facts.

A) On September 2003, the Plaintiff and Hyundai Construction, a reconstruction project partnership, concluded the instant loan agreement with the purport that, around September 2003, the National Bank and the National Bank loaned household collective housing funds, such as moving expenses, to the Plaintiff’s union members, and the Plaintiff and Hyundai Construction shall jointly and severally guarantee the obligation of moving expenses to the National Bank for the National Bank of Korea.

On November 26, 2004, the Defendant, a member of the Plaintiff, Hyundai Construction, and the Plaintiff, entered into a contract on the loan and guarantee of moving expenses, and entered into a monetary loan contract. The content of the contract is as follows: “The moving expenses that the current construction lends to the Defendant shall be paid from the national bank in the name of the Plaintiff’s member (the Defendant) to the customer bank in the name of the Plaintiff’s member (the Defendant shall guarantee the moving expenses (Article 1(1)); “The Defendant shall make the Plaintiff a joint guarantor (Article 5(1)) to guarantee the repayment of the loan amount; and “the Defendant, who has leased the moving expenses to secure the claim for the present construction, shall set up a collateral security (Article 6) to the Defendant’s ownership on the business site, the site as a modern creditor; and the Defendant as the debtor (Article 6).”

On December 1, 2004, the National Bank loaned a loan of KRW 70 million to the defendant under the pretext of moving expenses, and Hyundai Construction guaranteed the defendant's obligation to lend the loan of this case to the national bank.

On April 1, 2005, the Defendant completed on November 30, 2004 the registration of creation of a mortgage (hereinafter referred to as the “mortgage”) with respect to the land owned by the Defendant within the implementation zone of the instant reconstruction project on the grounds of the “mortgage contract” on November 30, 2004, the maximum debt amount of KRW 91 million, and the establishment of a mortgage (hereinafter referred to as the “mortgage”).

B) On December 23, 2004, the Plaintiff and Hyundai Construction agreed to the effect that, upon entering into the instant construction contract for the instant construction project with respect to the construction contract amount, the contract amount shall be calculated by subtracting business expenses from the Plaintiff’s members’ contribution, the general apartment sales revenue, and the general sales revenue for commercial buildings from the total sales revenue with respect to the construction contract amount.

After the completion of a new building according to the instant contract, the Plaintiff and Hyundai Construction entered into a modified contract on October 9, 2007 with the content that the amount of the construction contract of the instant construction contract is fixed at a certain amount.

C) On December 16, 2004, Hyundai Construction changed the instant account opened in the name of the Plaintiff and Hyundai Construction Joint to the name of Hyundai Construction Separate. From that time, Hyundai Construction recovered the construction cost under the instant construction contract while managing the sales revenue deposited in the instant account from that time. At the time of the conclusion of the modified contract for the instant construction contract, it came to recover the total amount of the construction contract finalized under the modified contract.

D) Although Hyundai Construction had managed the instant account until October 2008, it had withdrawn only the remainder of the amount reserved by the amount equivalent to 130% of the total amount of the non-paid moving allowance loan from the sales income in the instant account on the ground that the Plaintiff’s request for withdrawal of money was demanded by the National Bank to pay the moving allowance loan, including the instant loan, on the ground that the Plaintiff’s request for withdrawal was demanded by the National Bank.

E) As the Defendant did not repay the instant loan obligations, the National Bank, on December 30, 2008, collected the instant loan claims by offsetting the instant loan claims and the deposit claims in the account on December 30, 2008 (hereinafter “instant offset disposition”).

F) Hyundai Construction withdrawn the amount remaining in the instant account on May 16, 2012 and deposited it into the Plaintiff’s account. On January 18, 2013, concluded a transfer contract with the Plaintiff on the instant collective security right and its secured claim, and concluded a supplementary registration prior to the instant collective security on January 23, 2013 with the Plaintiff.

G) Modern Construction is currently a position that no claim exists with respect to the instant reconstruction project.

3) First, we examine what the Plaintiff is a joint and several surety under the loan agreement of this case.

Examining the above facts in light of the legal principles as seen earlier, the language and text of Article 5(1) of the Loan Agreement is to the effect that the Plaintiff is a joint and several surety for the Defendant’s obligation to borrow the Defendant’s Hyundai Construction. However, the Loan Agreement of this case is in accordance with the Loan Agreement with the National Bank.

In light of the fact that the terms of Article 1 (1) of the Loan Agreement of this case provide that the moving expenses that the present construction lends to the defendant in the name of the defendant shall be paid from the national bank in the name of the defendant, and Hyundai Construction shall be a joint and several guarantee for the moving expenses. In fact, when the national bank loans the loan in this case to the defendant as the moving expenses, and Hyundai Construction provides the defendant with the loan obligations of this case, it is not the defendant's loan obligations under the loan agreement of this case as the loan contract of this case, but the defendant's obligation that the plaintiff stand as joint and several surety is not the defendant's loan obligations for the modern construction, but the defendant's obligation to pay the loan of this case to the national bank of this case to the defendant is interpreted as the "liability for indemnity that the defendant bears to the modern Construction" not the defendant's obligation for the loan of this case.

4) Furthermore, we examine whether the Plaintiff acquired the right to indemnity against the Defendant.

A) Since the Plaintiff jointly and severally guaranteed the Defendant’s liability for indemnity against Hyundai Construction according to the instant loan for consumption, the Plaintiff acquired the right to indemnity against the Defendant in the event that the Defendant’s obligation for indemnity is extinguished due to the Plaintiff’s withdrawal (Article 441(1) of the Civil Act).

B) According to the above facts, the following circumstances are revealed.

(1) As a result of the offset disposition of this case, the Defendant’s obligation to the Defendant’s national bank was extinguished, the Defendant became liable for indemnity against Hyundai Construction, a joint and several surety, and the Plaintiff was also liable for the Defendant’s joint and several liability against Hyundai Construction.

(2) According to the instant construction contract and the instant modified contract, the amount equivalent to the construction contract amount established under the instant modified contract out of the proceeds from sale in lots in the instant account will be attributed to Hyundai Construction, and the remainder will be attributed to the Plaintiff. On December 2, 2008, at the time of the instant offset disposition, the entire amount of the construction contract amount finalized under the instant construction contract and the instant modified contract was recovered. As such, the sales revenue remaining in the instant account at the time of the instant offset disposition was the amount to be reverted to the Plaintiff. Accordingly, Hyundai Construction was liable to withdraw the sales revenue remaining in the instant account and pay to the Plaintiff.

(3) The offset disposition of this case pertains to the deposit claim remaining in the account of this case and the loan claim of this case. Although the debt of this case was extinguished due to the withdrawal of Hyundai Construction, which is the deposit claim, the amount of the loan of this case used for the offset disposition of this case constitutes the sales revenue that is the original Hyundai Construction withdraws and the obligation to pay to the Plaintiff. Thus, as a modern construction, it is obliged to pay the Plaintiff the amount of the loan amount used for the offset disposition

(4) However, while transferring the proceeds from sale deposited in the instant account to the Plaintiff, Hyundai Construction withdrawn only the deposit remaining in the instant account without separately paying the amount of loans used to dispose of the instant offset, and instead, transferred the instant collateral security right to secure the Defendant’s indemnity claim.

C) Examining the aforementioned circumstances in light of the legal principles as seen earlier, in particular, at the time Hyundai Construction transferred deposit money to the Plaintiff, the Plaintiff and Hyundai Construction assumed the same amount of debt with respect to each other (the Plaintiff was obligated to pay joint and several liability for indemnity money established following the offset disposition of this case, Hyundai Construction was obligated to pay the amount equivalent to the sales revenue used in the offset disposition of this case), ② Hyundai Construction transferred the security right to the claim for indemnity money to the Plaintiff even if it did not directly recover the claim for indemnity money from the Plaintiff, while Hyundai Construction only withdrawn and paid the deposit money remaining in the account of this case to the Plaintiff, and ③ Hyundai Construction confirmed that there was no claim against the Plaintiff or the Defendant at the time of transfer of the sales revenue of Hyundai Construction, it is reasonable to view that at the time of transfer of the sales revenue of Hyundai Construction, the Plaintiff and Hyundai Construction agreed to explicitly settle the debt owed to each other by offsetting, etc. due to the offset disposition of this case.

5) Nevertheless, the lower court determined that the Plaintiff could not directly exercise the right to demand reimbursement against the Defendant even if the evidence presented by the Plaintiff alone was insufficient to deem that the settlement of the subrogated payment of the instant loan obligation between the Plaintiff and Hyundai Construction. In so doing, the lower court erred by misapprehending the legal doctrine on the interpretation of legal act, thereby failing to exhaust all necessary deliberations, or by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, which affected the conclusion of the judgment. The allegation contained in the grounds of appeal

2. As to the claim for restitution of unjust enrichment

The court below rejected the plaintiff's claim for this part of the commercial building as it did not have occupied or used the commercial building of this case without any legal ground since the defendant leased the commercial building of this case to a third party after obtaining prior consent from the plaintiff who had acquired the commercial building of this case. Even if the commercial building of this case was occupied or used without any legal ground because there was no valid consent, even if the defendant occupied or used the commercial building of this case without any legal ground, it is judged that he was a bona fide possessor, and rejected the plaintiff's claim for this part of this case. In light of the relevant legal principles and the evidence adopted by the court below, the

3. Conclusion

Therefore, the part of the judgment below regarding the claim for reimbursement among the judgment below is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. The remaining appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Jae-sik, Counsel for the defendant

Justices Park Byung-hee

A person shall be appointed.