Crocom Co., Ltd. (Law Firm New Village, Attorney Song-chul et al., Counsel for defendant-appellant)

Defendant-Counterclaim (Law Firm Lee & Lee, Attorneys Lee In-bok et al., Counsel for defendant-Counterclaim)

January 23, 2014

Seoul Central District Court Decision 2012Gadan151414 Decided February 20, 2013

1. Revocation of the first instance judgment.

2. The plaintiff (Counterclaim defendant)'s claim on the principal lawsuit is dismissed.

3. All of the Defendant-Counterclaim Claim filed in the trial is dismissed.

4. Of the total costs of the lawsuit, the part incurred by the principal lawsuit shall be borne by the Plaintiff (Counterclaim Defendant), and the part incurred by the counterclaim by the Defendant (Counterclaim Plaintiff) respectively.

1. Claim of the principal lawsuit: The Bank confirms that the claim for withdrawal of KRW 70,904,881 deposited by the Seoul Central District Court No. 13808 on July 18, 2012 was against the Plaintiff (hereinafter “Plaintiff”).

2. Claim for counterclaim: (a) around July 18, 2012, the Industrial Bank of Korea confirmed that the claim for withdrawal of KRW 70,904,881 deposited by the Seoul Central District Court No. 13808 on gold 138,2012 was against the Defendant (Counterclaim Plaintiff; hereinafter “Defendant”); and (b) the Plaintiff performed the procedure for notifying the Industrial Bank of Korea of the payment of retirement pension deposits in accordance with the retirement trust agreement concluded with the Industrial Bank of Korea. Preliminaryly, the Plaintiff paid to the Defendant the amount calculated at the rate of 70,904,81 won and the amount calculated at the rate of 20% per annum from the day following the date of delivery of a duplicate of the counterclaim of this case to the day of full payment (the Defendant filed a counterclaim at the trial).

3. Purport of appeal: Revocation of the judgment of the court of first instance. The plaintiff's appeal is dismissed.

1. Determination as to the principal lawsuit and the main counterclaim

A. Basic facts and the summary of the Parties’ assertion

The court's explanation on this part is consistent with the reasoning of the judgment of the court of first instance, and this part is cited in accordance with the main sentence of Article 420 of the Civil Procedure Act.

B. Determination

1) First, we examine the existence of the right to claim reimbursement of deposit money against the Plaintiff or the Defendant, the deposit recipient made by the Industrial Bank of Korea.

2) According to Gap evidence Nos. 12-1 and 2, the Industrial Bank of Korea established the deposit number of the Seoul Central District Court on July 18, 2012, as the Bank No. 13808, the defendant or the plaintiff: the defendant or the plaintiff: the latter part of Article 487 of the Civil Code, and the latter part of Article 487 of the Civil Code: the depositor entered into a trust agreement with the increased information and communications and the retirement trust agreement on December 31, 2001, and completed the payment of retirement allowances to 23 beneficiaries on March 15, 2006, and manages and operates the retirement trust money of 70.904.81 won as of March 15, 2006. Since the plaintiff absorbings the above retirement trust money with the authority to receive the above retirement trust money, it can be acknowledged that the depositer of the defendant's representative director or the defendant's representative director's claim that he received the above retirement trust money before it was 80.484.

3) According to the above facts, the Industrial Bank of Korea deposited the above amount. The repayment deposit under the latter part of Article 487 of the Civil Act was made in the event that the repayment obligee is unknown without any negligence, and the obligor grants the right to claim payment of the deposit money to the obligee, and the obligor is relieved of the obligation. Thus, the obligation which is the object of the repayment deposit is the existing confirmed obligation which may bring about the effect of exemption from the obligation. However, according to the above facts acknowledged, the Plaintiff’s claim against the Industrial Bank of Korea is the right to claim the return of the trust property for the reason of termination of the retirement trust contract. The Plaintiff’s claim against the Industrial Bank of Korea is the right to claim the return of the remaining property after the termination of the retirement trust contract. Since the Plaintiff’s claim against the Industrial Bank of Korea is the beneficiary of the retirement trust contract, it is not the same claim, but its nature is different. Nevertheless, the Industrial Bank of Korea’s claim that the obligee cannot be known because it stated such circumstance as the reason for deposit itself in the deposit itself. The Plaintiff and the Defendant’s claim for payment deposit are invalid.

4) In addition, the Defendant asserts that the Plaintiff should notify the Industrial Bank of Korea of the payment of retirement benefits to the Defendant pursuant to Articles 32 and 18 of the Retirement Trust Contract. According to the Plaintiff’s evidence No. 2, the instant retirement trust agreement between the increased information and communications technology and the Industrial Bank of Korea includes “I notify the trustee of the payment of retirement benefits within five days from the date on which the cause for the payment of retirement benefits occurred.” However, the Defendant, not the parties to the instant retirement trust agreement, directly assert and prove the title to seek the notification of the payment of retirement benefits under the said retirement trust agreement to the Industrial Bank of Korea. Accordingly, the Defendant’s assertion is without merit.

2. Judgment on the conjunctive counterclaim

(a) the existence of a claim for retirement allowance;

The defendant asserts that the plaintiff who absorptions and merges information and communications technology has a duty to pay retirement allowances at the cost of managing delegated affairs to the defendant who was the representative director of the increased information and communications.

The court's explanation on this part is citing the reasoning of the judgment of the court of first instance as it is in accordance with the main sentence of Article 420 of the Civil Procedure Act, since the reasoning of the judgment of the court of first instance

B. Whether the statute of limitations expired

The Plaintiff asserts that the Defendant’s retirement allowance claim has expired by prescription. As seen earlier, the Defendant’s retirement allowance claim against the Plaintiff is not a retirement allowance claim under the Labor Standards Act, but a retirement allowance claim against the increased information and communications, and the above claim constitutes a commercial claim (see Supreme Court Decision 2009Da10098, Mar. 11, 2010, etc.). As seen earlier, the period of extinctive prescription is five years. However, as seen earlier, the Defendant retired from an increased information and communications on May 2, 2005, and the instant counterclaim filed on November 12, 2013 when five years passed thereafter, the Defendant’s retirement allowance claim against the Plaintiff was extinguished by prescription. Accordingly, the Plaintiff’s aforementioned assertion is with merit.

The defendant asserts that the plaintiff's assertion on the expiration of the extinctive prescription is contrary to the good faith principle, but there is no evidence to acknowledge it. Therefore, the above argument is without merit.

3. Conclusion

Therefore, the plaintiff's main claim shall be dismissed as it is without merit. The judgment of the court of first instance, which has different conclusions, shall be accepted by the defendant's appeal, and the plaintiff's main claim shall be revoked, and the plaintiff's main claim shall be dismissed, and all of the defendant's main and preliminary counterclaims raised in the trial shall be dismissed as per Disposition.

Judges Lee Jae-mo (Presiding Judge)