2016Na102588 Cancellation of the right to collateral security

A person shall be appointed.

A person shall be appointed.

Daejeon District Court Decision 2014Kadan5777 Decided March 9, 2016

March 31, 2017

May 19, 2017

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the defendant.

1. Purport of claim

피고는 XXXX영농조합법인에게 별지 목록 기재 각 부동산에 관하여 대전지방법원 장

Port Registry Office of registration of cancellation of each registration of the establishment of a neighboring mortgage completed pursuant to No. 1101 of February 1, 2011

Ed. each performance.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Basic facts

가 . 원고는 2008 . 10 . 1 . XXXX 영농조합법인 ( 이하 ' 이 사건 법인 ' 이라 한다 ) 에 ' 2008 년 농림사업 ( 산림분야 ) 임산물저장시설 ' 의 보조금으로 합계 43 , 680 , 000원 ( 국가 보조금 21 , 840 , 000원 , 도 보조금 10 , 920 , 000원 , 군 보조금 10 , 920 , 000원 ) 을 교부할 것을 결정하 였다 . 그 후 원고는 승인된 설계서대로 신축되지 않은 점을 고려하여 보조금을 감액하 였고 , 2009 . 6 . 3 . 이 사건 법인에 보조금 38 , 633 , 000원을 지급하였다 .

B. The instant corporation newly constructed a building listed in attached Table No. 1, and paid the construction cost with the above subsidies received from the Plaintiff on April 22, 2009 when completing registration of initial ownership of the said building.

C. On April 13, 2009, the Plaintiff decided to grant KRW 1,200,00,000 (including KRW 800,000,000, 2000, 200, 200, 200, 2000, 200, 200, 200, 200, 200, 200, 200, 300, 60, 200, 200, 60, 200, 200, 200, 200, 60, 200, 20, 200, 60, 20, 200, 60, 20, 200, 60, 200, 200, 30, 206, 20, 206, 200, 206, 2009.

D. The instant corporation, using the above subsidies as construction cost, newly constructs each building listed in the separate sheet Nos. 2 through 4, and completed the registration of initial ownership on March 2, 2010.

E. On February 1, 201, without obtaining approval from the head of a central government agency, the instant corporation entered into a contract with the Defendant for the establishment of the right to collateral security on each of the buildings listed in the separate sheet with the company (hereinafter “instant building”) and completed the registration of establishment of the right to collateral security (hereinafter “registration of establishment of the right to collateral security”). On the same day, the establishment of the right to collateral security was completed in the Defendant’s future on the same day.

F. On March 19, 2012, the Plaintiff urged the instant corporation to cancel the registration of the establishment of the instant neighboring mortgage on the ground that it failed to comply with the demands, and ordered the instant corporation to return the remaining subsidies of KRW 762, 971, 510 (hereinafter “instant subsidies”) excluding the amount deposited in the court out of the actual subsidies paid to the instant corporation.

[Reasons for Recognition] Each entry in Gap's Evidence Nos. 1 through 12, 14 through 38, 40 through 57 (which include each number; hereinafter the same shall apply), and the purport of the whole pleadings, as a whole, without dispute

2. Determination on the defense prior to the merits

A. Summary of the argument

On the ground that the registration of the establishment of a new mortgage in the name of the defendant, which was completed in the building of this case, was invalid, the defendant asserts that the registration of the establishment of a new mortgage in the name of the defendant of this case was unlawful on the ground that the registration of the establishment of a new mortgage in the name of the defendant of this case was null and void. The defendant asserted that the registration of the cancellation of the establishment of a new mortgage in this case against the corporation of this case was unlawful on the ground

1) The instant subsidy paid to the instant corporation constitutes an indirect subsidy under Article 2 subparag. 4 of the former Act on the Budgeting and Management of Subsidies (amended by Act No. 10898, Jul. 25, 2011; hereinafter “former Subsidy Act”), and thus, Articles 30(1) and 31 of the former Subsidy Act, which are the provisions on the recovery of subsidies, do not apply.

2) Even if Articles 30 and 31 of the former Subsidy Act apply to indirect subsidies, the above provisions merely stipulate the subject of revocation of the decision to grant subsidies and the subject of the claim to return subsidies as the head of a central government agency. Thus, the Plaintiff cannot be the subject of the disposition. The Plaintiff’s revocation and the disposition of return of the instant subsidies in the absence of the authority to revoke and return the decision to grant subsidies pursuant to Article 17 of the former Enforcement Decree of the Subsidy Act is null and void due to a person’s act of disposal without authority. Thus, the Plaintiff’s right to claim the return of the instant subsidies against the instant legal entity is not recognized.

3) In addition, even though the Plaintiff’s right to claim the return of subsidies against the instant corporation is recognized, this cannot be the right to claim the return of subsidies against the instant corporation by civil action, since it cannot be claimed as a right under public law.

4) The instant corporation cannot be deemed insolvent.

(b) Relevant statutes;

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

C. Determination

1) First, we examine the argument that Article 30(1) and Article 31 of the former Subsidy Act does not apply to the instant subsidy for indirect subsidies under Article 2 subparag. 4 of the former Subsidy Act.

Of the instant subsidies, there is no dispute between the parties that the State subsidies amount to 4/6 of the total amount, KRW 508, KRW 647, KRW 673, and KRW 127, 161, and 918, respectively, of the instant subsidies, and thus, the instant subsidies constitute an indirect subsidy (see Article 2 subparag. 1 and 4 of the former Subsidy Act). However, since the former Subsidy Act applies to the portion of the instant subsidies, which are indirect subsidies, as well as indirect subsidies (see Supreme Court Decision 2010Do8648, Feb. 24, 2011, etc.), the Defendant’s assertion that Article 30(1) of the former Subsidy Act applies to the State subsidies of this case is against the State’s Act.

2) The Plaintiff’s disposition of revocation and return of the decision to grant the instant subsidy constitutes an act of disposal by a person without authority and thus null and void due to serious and apparent defects, and thus, the Plaintiff’s claim that the Plaintiff does not have the right to claim the return of the subsidy under Articles 30(1) and 31 of the former Act does not exist.

Where a local government grants an indirect subsidy program with all or part of the national subsidy, the head of the local government may order the recipient of the subsidy who violates the statutes by using the indirect subsidy for any purpose other than its original purpose to return all or part of the indirect subsidy, and even if part of the indirect subsidy is the national treasury subsidy, the head of the central government agency does not have the right to order the return (see, e.g., Supreme Court Decision 2011Du24514, Nov. 14, 2013). The Plaintiff may directly revoke the decision to grant the subsidy and request the return of the subsidy with respect to the entire subsidy of this case including the national subsidy. Accordingly, the Defendant’s assertion that violates this is rejected.

3) We examine the argument that the claim to return the subsidy of this case is a public right in public law and cannot be the right to preserve the creditor's subrogation right. The creditor's subrogation right under Article 404 of the Civil Act refers to the right to exercise the creditor's subrogation right to the third person of the debtor in case where the creditor needs to preserve his claim against the debtor. In this case, if the need to preserve the preserved claim is confirmed and the due date comes into existence, it is sufficient that the creditor's subrogation right is not hindered in exercising the creditor's subrogation right regardless of the cause of the claim (see, e.g., Supreme Court Decision 87Meu961, Feb. 23, 198). Thus, the above argument is rejected.

4) Next, we examine whether the instant corporation is insolvent.

In full view of the overall purport of the pleadings as a result of the fact-finding conducted by the first instance court A, and the equivalent fact-finding conducted by the first instance court E, the corporation of this case is recognized to have been in excess of its obligation as shown in the following table from the time when the decision to grant the subsidy of this case was revoked to the time when the decision to grant the subsidy of this case was revoked to the time when the argument was closed in the first instance court.

A person shall be appointed.

In light of the above reasons, the Defendant alleged that the revocation of the decision to grant or order to return the amount of the Plaintiff’s assistance in the instant case is invalid as it is conducted by an unauthorized person, and thus, the obligation to return the instant subsidy should be excluded from the corporation’s small property. However, as seen earlier, it is lawful to order the subsidy recipient who violated the statutes by using the indirect subsidy for other purposes, etc., to return all or part of the indirect subsidy. Thus, the Defendant’s above assertion is without merit.

3. Judgment on the merits

A. Determination on the cause of the claim

1) Whether the duty to cancel the registration of the establishment of a neighboring mortgage exists

A) Article 35 of the former Subsidy Act provides that "A subsidized project operator shall not use, transfer, exchange, or provide as security any important property prescribed by Presidential Decree, which is acquired with a subsidy or the utility thereof increased." Article 15 (2) of the former Enforcement Decree of the Subsidy Act provides that "property which is important property pursuant to Article 35 of the same Act shall not be provided for any purpose that violates the purpose of granting a subsidy even after the completion of the subsidized project concerned," and Article 15 (2) of the former Enforcement Decree of the Subsidy Act provides that "real property and the appurtenances thereof shall be provided". This provision provides that the legislative purpose is to ensure the proper management and effectiveness of the subsidy of the State in order to continuously secure the effectiveness of the subsidy by preventing the property acquired with a subsidy from being used or disposed of for any purpose other than the item of the subsidy granted by the State budget. Therefore, the above provision is not an effective provision (see Supreme Court Decision 2004Da5556, Oct. 28, 2004, etc.).

B) Whether Article 35 of the former Subsidy Act applies to indirect subsidies

Article 35 Section 1 of the Act on the Management of Subsidies (amended on July 25, 201) prohibits disposal of the property acquired through subsidies or indirect subsidies to the 'subsidized subsidy program operator' or 'subsidized subsidy program operator'. However, Article 35 of the former Subsidy Act prohibits disposal of the property acquired through subsidies to the 'subsidized subsidy program operator'. However, the legislative purport of Article 35 of the former Subsidy Act is to continuously secure the effectiveness of the State's appropriate management and subsidies for subsidized projects, and it can be seen as common to subsidies and indirect subsidies. ② Article 16 subparagraph 3 of the former Subsidy Act does not stipulate that the 'the light of the property acquired through subsidies or indirect subsidies' is not subject to restriction on disposal of the property acquired through subsidies or indirect subsidies under the proviso of Article 35 of the former Subsidy Act, as well as that of the 'the amended Act on the Disposal of Property acquired through indirect subsidies' as well as that of the 'State subsidy program operator', which is not subject to restriction on disposal of the property by non-State subsidy.

C) In the instant case, as seen earlier, the instant building was constructed using the instant subsidy received from the Plaintiff as the construction cost. Therefore, the instant building is real estate acquired through indirect subsidies. The act of the instant corporation offering the instant building to the Defendant as security without obtaining approval from the Minister of the Korea Forest Service, the head of the central government agency, as a disposal act violating Article 35 of the former Subsidy Act, and thus, the act of violating Article 35 of the former Subsidy Act shall be deemed null and void. Therefore, the registration of establishment of the instant neighboring building completed pursuant to the invalid mortgage contract shall also be cancelled

2) Requirements for subrogation by creditors

As seen earlier, the Plaintiff filed a lawsuit to grant the instant subsidy to the instant legal entity and notified the instant legal entity of the fact that the instant subsidy was to be returned, barring any special circumstance, the instant legal entity is obligated to return the instant subsidy to the Plaintiff. The Plaintiff’s claim for the return of the subsidy to the instant legal entity is the preserved claim of the creditor’s subrogation right. Furthermore, the Plaintiff’s claim for the return of the subsidy to the instant legal entity is identical to the foregoing, as seen earlier, that the instant legal entity is in excess of the obligation as of the date of closing argument in the trial. Therefore, the

3) Sub-decisions

Therefore, the Defendant, as a creditor of the instant corporation, is obligated to perform the registration procedure for cancellation of the establishment registration of the instant neighboring establishment to the original High Court seeking subrogation of the instant corporation.

B. Judgment on the defendant's assertion

The court's explanation on this part is the same as the reasons stated in Paragraph 4 of the judgment of the court of first instance, and therefore, it cites it according to the main text of Article 420 of the Civil Procedure Act.

4. Conclusion

If so, the plaintiff's claim shall be accepted with due reasons, and the judgment of the court of first instance is justified with this conclusion, so the defendant's appeal is dismissed and it is so decided as per Disposition.

Judges of the presiding judge;

Judges Choi Young-young

Judges Park Jong-young

1) Article 35 (Restriction on Disposal of Property)

(1) A subsidy program operator or indirect subsidy program operator shall be determined by Presidential Decree as those acquired with a subsidy or indirect subsidy or the utility thereof increased.

of any important property (hereafter referred to as "important property" in this Article), the present value and the increase or decrease thereof, as prescribed by Presidential Decree, shall be clearly stated.

The current status shall be reported to the head of the central government agency or the head of the relevant local government.

(2) The head of a central government agency and the head of a local government shall present the current status of important property reported from subsidy program operators or indirect subsidy program operators.

A public announcement shall be made through computer communications, etc., as prescribed by Presidential Decree.

(3) A subsidy program operator or an indirect subsidy program operator shall provide the following important property without approval from the head of a central government agency after completion of the relevant subsidy program:

No act falling under any of the following subparagraphs shall be conducted: Provided, That in cases prescribed by Presidential Decree, the following acts shall be conducted without approval from the head of a central government agency:

(2) may conduct such act.

1. Use for any purpose contrary to the purpose of granting subsidies;

2. Transfer, exchange, or lending;

3. Furnishing of security;