(영문) 서울고등법원 2016. 10. 27. 선고 2015나2048991 판결

Defendant AAA Co., Ltd. (hereinafter referred to as “Defendant AA”), BB (hereinafter referred to as “Defendant BB”) shall jointly and severally pay to the Plaintiff the amount of KRW 0,00,000,000 and the amount of KRW 20% per annum from October 00, 000 to the date of delivery of a copy of the application for change of the claim and cause of the claim of this case from the next day to the date of full payment.

DD, the trust agreement concluded between Defendant AA and Defendant CCC (hereinafter “Defendant CCC”) on October 0, 000 shall be revoked. Defendant CCC will implement the registration procedure for ownership transfer based on the restoration of ownership due to revocation of each fraudulent act to D and the remainder of 1/2 shares to A.

DD, Defendant BB and Defendant CCC’s respective trust agreements concluded on October 0, 000, October 00, 000, and November 1, 000. Defendant CCC will cancel its respective trust agreements on November 1, 200. Defendant CCC will implement the registration procedure for transfer of ownership due to the cancellation of each fraudulent act to DD, while the remainder of 1/2 shares will implement the registration procedure for transfer of ownership due to the restoration of ownership due to the revocation of each fraudulent act to Defendant BB.

Reasons

1.Basics

The reasoning for this Court's explanation is as follows: "00,00,000 won" of No. 15 of the judgment of the court of first instance is "00,000,000,000"; "paragraph 3) of No. 20 of the 8th one is "(5)"; "Defendant Co., Ltd. DoD" or "Defendant DD" is the same as the corresponding part of the judgment of the court of first instance, except for the case where "DD" is used as "D"; therefore, it is cited as it is in accordance with the main sentence of Article 420 of the Civil Procedure Act."

(a) Claim against Defendant AA and BB (Selective Claim);

1) SS산업의 대표이사이던 JJJ과 TTT 형제는, GGGG의 채권자인 @@@@의 요청으로 연대보증인인 SS산업이 SS상가를 매각하여 GGGG의 @@@@에 대한 채무를 변제함으로써 입은 손해를 보전하기 위해, DDD의 대표이사 YYY, 그 형제인 운영자 ZZZ(이하 'YYY 형제'라 한다), 피고 BBB의 대표이사 LLL(이하 위 JJJ 등 5인을 'JJJ 등'이라 한다)과 공모하여, SS산업에 귀속되어야 할 SS상가의 매매대금을 이용하여 YJ 등으로부터 JJJ, TTT의 가족 및 친척들이 임원으로 있는 휴면회사인 DDD와 피고 BBB의 명의로 이 사건 부동산을 매수하기로 하였다.

However, out of 00,00,000,000 won as the purchase price of the real estate in this case and the amount paid as the secured debt of the instant mortgage in this case (i.e., 0,000,000,000 won (i., 0,000,000 won) (i.e., 00,000,000 won as the secured debt of the instant mortgage in the instant auction procedure as to the secured debt of the instant secured debt of the instant secured claim of the instant secured debt, which is KRW 0,00,00,000,000, which is 00,000,000 from the AA Savings Bank and BB Savings Bank as the secured debt, and (ii) JJ and TT arbitrarily transferred the secured debt of the instant secured claim to the Defendant JJ and TTS in a amount equivalent to KRW 00,00,00,000,000, which is 00,0000,000).

J and TT’s above acts constitute a tort such as breach of trust in collusion with funds of the SS industry, and actively participating in the above illegal acts by taking the lead of involvement in Zp et al. As such, the SS industry has the damage claim against Defendant AAA, which is physically divided from the DD whose representative director is, and Defendant BB and Defendant BB.

2) Meanwhile, the actual purchaser of the instant real estate was DD and Defendant AB (AA) who is not GGG, and DD and Defendant BB (AA) received KRW 0,00,000,00 as the sales price of the instant real estate from the SS industry and acquired the ownership of the instant real estate without any legal cause, by being aware of the fact that JJ and TT abuse of the representative director of the SS industry committed embezzlement, breach of trust, or abuse of the power of representation. As such, the SS industry has the right to return the said amount of unjust enrichment against DD, Defendant BB, and AA.

3) In addition, the fact that JJ, etc. completed the registration of ownership transfer under the name of DD and Defendant BB (AAA) with the funds of the SS industry is deemed to have concluded an implied title trust agreement. Since such title trust agreement is null and void, the said Defendants are obliged to return the above amount of KRW 0,000,000,000, which is the purchase funds received from the SS industry, as unjust enrichment.

4) Even if the SS industry DD and Defendant BB, and AA are not recognized, the SS industry agreed to lend the above 0,000,000,000,000 won to DD, BB, and AA, or the SS industry has invested it explicitly or implicitly. Thus, the SS industry has a claim for the return of loans or investments to Defendant BB, and AA.

5) As above, the SS industry has the damage claim, the claim for return of unjust enrichment, the claim for loans, or the claim for return of investment funds against Defendant AA and BB due to a tort. The Plaintiff claims against Defendant A and BB for payment of the above KRW 0,000,000,000 and damages for delay on behalf of the SS industry as a tax claimant for the SS industry.

B. Claim against Defendant CCC

DD, Defendant AA, and BB entrusted each share of the instant real estate to Defendant CCC, the sole property in excess of the obligation. This constitutes a fraudulent act detrimental to the SS industry, which constitutes a creditor, and thus, upon the Plaintiff’s exercise of the right to revoke a fraudulent act against Defendant CCC, DD, DD, Defendant BB, and Defendant CCC’s trust agreement on the instant land concluded on October 00, 00 between DDR and Defendant CCC, as well as DD, DD, and BB, and the instant trust agreement on the instant land concluded on October 00, 00, and on October 00, 00, and on October 0, 000, the trust agreement on the instant building should be revoked. Defendant CCC is obligated to implement each of the ownership transfer registration procedure on each of the shares in the name of Defendant CCC to restore DD, AA, BB, and B to its original state.

3. Determination as to claims against Defendant AA and BB

A. First of all, we examine whether JJ et al. conspired and embezzled the proceeds of the SS shop, or whether LL, Y, Y Form Y actively participated in the embezzlement or breach of trust of the SS industry in J and TT.

1) Comprehensively taking account of the overall purport of the arguments in evidence Nos. 10-1 to 8, evidence No. 11, and evidence No. 14, Defendant BB’s shares held 00% of the family members of TTS, LL holds 00% of the LL, and is the relative of TT and the YS of the Defendant AAA, and the KK’s wife as the YS is in office as the auditor. The JJ appears to have been closely exercising its close close business relationship with the Defendant BG and the TRJ as well as the GGG and SS industry’s representative director, GGGG’s auditor, Defendant BB’s representative director or auditor, and LL as the SIC’s representative director, and Defendant AAB and DD’s representative director. As the fact is recognized that the representative director of the Defendant AAB held TR’s business relationship with the Defendant BB and D’s representative director, it appears that the JTG and CGGJ were closely exercising its relationship with the Defendant BG and the GJ.

또한 앞서 본 기초사실에 의하면, 이 사건 부동산의 낙찰잔금 0,000,000,000원 중 0,000,000,000원은 SIC가 AA저축은행과 BB저축은행에 이 사건 부동산에 관한 근저당권부 피담보채권을 담보로 제공하고 대출받은 대출금으로 지급된 것인데, 위 근저당권부 피담보채권은 SS산업이 SS상가를 매도하면서 그 매매대금의 지급에 갈음하여 GPR이 @@@@에 GGGG의 채무를 대위변제하고 @@@@로부터 양수한 것이고, YJ의 처남 JJH가 이 사건 부동산에 관한 경매절차에서 배당받은 0,000,000,000원은 YJ 등이 이 사건 부동산의 매매대금 지급에 갈음하여 GPR이 @@@@로부터 이전받은 이 사건 부동산에 관한 근저당권부 피담보채권 중 일부를 JJH 명의로 양수한 것으로, 위 금액 합계 0,000,000,000원은 SS산업이 SS상가를 매각하여 받은 매매대금으로부터 나온 것으로 보인다.

In light of the following factors: (a) the relationship between the JJ, the JJ, the TT Form and the SSG, the GGG, the Defendant BB, and the LL, the sales process of the instant real estate; (b) the sales process of the instant real estate; and (c) the content of the instant sales contract between GGG and the YJ, etc.; and (b) the process of using KRW 000,000,000, which is a part of the sales price received by selling SG and selling SG as part of the outstanding debt of the instant real estate; and (c) the process of using the outstanding payment of the outstanding debt of the instant real estate, in order to find the instant real estate, for which the instant auction procedure had been in progress as the ownership of GGGG; and (d) the process of selling SGG and the instant real estate by gathering the sales price of SGG ownership as the use of the sale price of the instant real estate.

2) However, in light of the following circumstances, the aforementioned evidence and evidence as seen earlier, and the evidence presented by the Plaintiff, are insufficient to recognize that the JJ et al. embezzled the proceeds of the sale, or that LL, YY, and TT actively participated in the act of embezzlement or breach of trust in the SS industry by JJ and TT, and there is no other evidence to acknowledge otherwise.

A) Generally, the intent of the parties to the contract is generally deemed to be the intent of the parties to the contract to regard the person entered in the contract as the nominal owner as the parties to the contract, and thus, the nominal owner is the parties to the contract, barring any special circumstance. In light of the content of the instant sales contract, the process of conclusion, and the process of performing the said contract, the purchaser under the instant sales contract explicitly stated that “GGG” is “the parties to the contract.” In light of the content, the process, and the process of performing the instant sales contract as seen earlier, GGG agreed with the YJ, etc. to receive and transfer the ownership of the instant real estate claimed in the auction procedure from the YJ, etc. to the persons designated by the GGGGG or GGGGGGG, and the person who received the registration of ownership transfer

In addition, the reason why the buyer was the buyer at the time of the conclusion of the instant sales contract is that in light of the content of the instant sales contract, its implementation process, and the process of payment of the sales price, GGG was the actual owner of the instant real estate, not because the actual owner of the instant real estate was the actual owner of the instant real estate. Therefore, it appears that the method was to resolve complicated legal relations, such as the lease of the instant real estate, and that it was a method to conclude the previous legal disputes between GGG andYJ, etc. while the J maintained the status of the successful bidder. This accords with the substantive legal relationship, so that ownership may accrue to DD and Defendant BB by designating DD and Defendant BB as the actual owner of the instant real estate.

B) The Plaintiff asserted that the instant sales contract is a special circumstance in which the existence and content of the expression of intent cannot be acknowledged as stated in the language and text, and cited Supreme Court Decision 2014Da14115 Decided June 26, 2014. However, the foregoing Supreme Court Decision is related to the interpretation of intent between the parties in a case where the objective meaning of the language and text is not clearly expressed, and it does not apply to the instant case where the buyer clearly stated “GGG” in the sales contract.

C) LL or Defendant BB appears to have voluntarily prepared a considerable portion of the successful bid price of the instant real estate. That is, ① KRW 0,000,000,000,000, excluding the above KRW 0,000,000,000 among the successful bid price, Defendant BB’s representative director, is the debtor. When Defendant BB’s completion of the registration of ownership transfer on the instant real estate in the status of successful bidder, Defendant BB’s representative director, the amount was offered as security and offered as a loan from the Dong Savings Bank, and Y, etc. paid LL in subrogation. ② The principal and interest on the instant real estate sales amount was paid in KRW 0,00,000,000 to KSW under an agreement between SSW and GGG, and KSW deposited as 00,000,000, Seoul District Court deposited money in the name of 00G,000,000 GG 0,000 deposit.

③ In addition, Defendant BB paid KRW 00,000,000 to YJ, etc. on October 00, 000, the LL was transferred from the Do Savings Bank account of the LL. ④ The JJ died, Y et al. denied the right to claim for ownership transfer registration of DD and Defendant BB based on the instant sales contract, and Defendant BB deposited KRW 00,000,000 on the condition that Y et al. delivers documents related to ownership transfer registration to the district court on October 00, 00. The said money appears to be not the funds of the GGG or SS industry, but the GGG or SB industry.

The Plaintiff asserted that the LL or Defendant BB did not bear the LL, even in the case of the money that Defendant BB had no ability to provide the above funds, and Defendant BB paid. However, each of the descriptions of evidence Nos. 8-3, 15, 20, 21, 23, 24, and 25 is insufficient to recognize the above assertion, and there is no other evidence to acknowledge it.

D) On October 0, 000, SIC acquired the secured debt of this case equivalent to KRW 0,000,000,000 from the GPR, and on October 00, 00, granted a loan of KRW 0,000,000 from the AB Savings Bank and the BB Savings Bank as a security, and used KRW 0,000,00,000 among them for the successful bid price of the instant real estate. In light of the fact that Defendant BB entered into a sales contract with the IC and WW on October 000, it is difficult to conclude that the above loan was granted free of charge a loan of KRW 0,000,000 among the instant real estate as security.

E) GGG and SS industry around the time of bankruptcy: (a) from September 1, 000, YY type (DD’s representative director and operator) with its superior executive officers while running its business in SSS; (b) from around September 1, 2000, YY type (DD’s representative director and operator) had normally sold SSS and performed the work of discharging the obligation of the SS industry and obtaining profits therefrom. As part of this, (c) around October 00, 000, YY type (YY) entered into a sales contract with its legal agent’s qualifications to suspend the auction procedure on SSS value, as the sales contract was concluded, as the sales contract was entered into between 00 and 00, 000, 000, 000, 000, 000, 000, 00, 000, 00, 000, YY type (Y).

F) Therefore, while entering into the instant sales contract, GGG would have completed the registration of ownership transfer of the instant real estate under the name of DD or Defendant BB, only conform to its quid pro quo relationship. It is difficult to deem that JJ or TT has embezzled the funds of the SS industry by participating in a public bid or an active participation with the JJ or TT, or that it was provided without any consideration from the SS industry with respect to the instant real estate.

사) 원고는 JJJ, TTT 형제가 SS산업의 자금을 횡령하기 위하여 GPR, DDD, 피고 BBB와 공모하였다는 점에 관한 증거로서 SS산업이 내부적으로 작성해두었다는 자료라며 갑 제32, 33, 34호증을 제출하고 있으나, 당심 증인 QQQ의 증언만으로는 위 각 서증이 SS산업에 의하여 작성된 문서라는 점을 인정하기에 부족하고 달리 이를 인정할 증거가 없어 그 진정성립이 인정되지 않을 뿐만 아니라, 이와달리 보더라도 위 각 서증들만으로는 원고의 위 주장사실을 인정하기에 부족하다.

3) 한편, SS상가의 매각대금 중 일부인 위 0,000,000,000원이 이 사건 부동산에 관한 낙찰대금 납입에 사용된 과정을 보면, 이는 JJJ이 SS상가를 매수한 GPR으로 하여금 00,000,000,000원 상당의 이 사건 근저당권부 피담보채권을 @@@@로부터 양도받았다가 0000. 0. 0. 그 중 0,000,000,000원 상당의 피담보채권을 SIC에게, 00,000,000,000원 상당의 피담보채권을 YJ의 처남인 JJH에게 양도하게 함으로써 비롯된 것이다.

Even if the JJ and TT embezzled the proceeds from the sale of SS shop, as alleged by the Plaintiff, the right to claim compensation for damages by the Plaintiff is deemed to have run from October 0, 000 when the GPR transferred the secured debt of the instant right to collateral security to SIC, etc. in accordance with the direction of the JJ, to which the right to claim compensation for damages by the Plaintiff had been filed on October 0, 000, in accordance with Article 766(2) of the Civil Act. Since it is apparent in the record that the Plaintiff’s lawsuit of this case was filed on October 0, 000, the Plaintiff’s right to claim compensation for damages of this case has run the ten-year extinctive prescription as stipulated in Article 766(2) of the Civil Act since October 0, 000, and Defendant AAA and BBB, pointing this out, has merit.

4) Ultimately, the Plaintiff’s assertion that the SS industry has a claim against Defendant AA and B for damages on the ground of tort is without merit.

B. Next, we examine the existence of the claim for return of unjust enrichment against Defendant AA and BB in the SS industry alleged by the Plaintiff. As seen in Section A-2 of the above, DD and Defendant BB acquired ownership of the instant real estate according to the instant sales contract, which is a contract for third party, and thus, it cannot be deemed that Defendant BB, the representative director of the SS industry, was the representative director of the SS industry, even though 0,000,000,000 won out of the sales price of the SB was used as the purchase price of the instant real estate, it cannot be deemed that Defendant BB, who was the representative director of the SS industry, acquired the above 0,000,000,000 won without any legal grounds, even though it was aware of the acts of embezzlement, breach of trust, or abuse of power of representation.

In addition, the evidence submitted by the Plaintiff alone is insufficient to recognize that Defendant BB’s ownership of the instant real estate acquired from the sales price of the SS shop price between J and TT and LL belongs to the SS industry, but it is not sufficient to recognize that there was an implied title trust agreement to trust only the registration name to Defendant BB, and there is no other evidence to acknowledge otherwise.

Therefore, the plaintiff's assertion on this part is without merit, since the SS industry's claim for return of unjust enrichment against the defendant BB and AA is not recognized.

C. Lastly, there is no evidence to acknowledge that the SS industry lent or invested the proceeds from the sale of the instant real estate to DD, Defendant BB, or AA, as the purchase price of the instant real estate, and there is no evidence to acknowledge that the SS industry has leased or invested the proceeds from the sale of the instant real estate. Therefore, it is not possible to acknowledge the Plaintiff’s loans or investment funds against DD, Defendant BB, or

D. As above, insofar as the Plaintiff’s claims against Defendant BB and AA, which are the subrogated claims, are not recognized, all claims against Defendant BB and AA, are without merit.

4. Determination as to the claim against Defendant CCC

The Plaintiff’s claim for the revocation of the fraudulent act and its restitution against Defendant CCC by subrogationing the SS industry on the premise that the existence of the preserved claim against Defendant AA, BB (a damage claim, unjust enrichment return claim, loan, or investment claim arising from a tort) exists, and that the trust agreement entered into between Defendant CCC and DD, Defendant AA, and BB constitutes a fraudulent act in lieu of the SS industry. This part of the Plaintiff’s claim for the revocation of the fraudulent act and its restitution against the Defendant CCC as seen earlier is without merit, unless the preserved claim against Defendant BB, and AA is recognized.

5. Conclusion

Therefore, the plaintiff's claim against the defendants is dismissed in its entirety because it is without merit. Since the part against the defendants in the judgment of the court of first instance is justified in its conclusion, the plaintiff's appeal is dismissed in its entirety as it is without merit. It is so decided as per Disposition.

심급 사건

-서울중앙지방법원 2015.08.17.선고 2014가합581191

서울고등법원 2016.10.27.선고 2015나2048991

-대법원 2018.09.13.선고 2016다269056

참조조문

-민법 제406조

-민법 제766조 제2항

-민사소송법 제420조

참조판례

-서울중앙지방법원 2015. 08. 17. 선고 2014가합581191 판결

-대법원 2014. 6. 26. 선고 2014다14115 판결

유사 판례

-부산지방법원 2008.2.15.선고 2004가합10544 판결

-울산지방법원 2016. 05. 26. 선고 2015가합20038 판결

-서울고등법원 2015. 05. 01. 선고 2014나2025250 판결

-수원지방법원 2016. 05. 26. 선고 2015나31145 판결

-서울행정법원 2019. 01. 24. 선고 2017구합72447 판결