Korea

Ulsan Construction Co., Ltd., the administrator of the Nonparty in charge of the Nonparty in the Ulsan Construction Co., Ltd. (Law Firm Square, Attorneys Lee E-sik et al., Counsel for the plaintiff-appellant)

December 15, 2016

1. The instant lawsuit shall be dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The defendant shall pay to the plaintiff 482,969,862 won with 5% interest per annum from September 20, 2016 to the day of complete payment.

1. Basic facts

(a) Conclusion of a contract;

1) Around 2012, the Armed Forces Finance Management Group, an agency affiliated with the Plaintiff, conducted a tendering procedure on the instant construction project (hereinafter “the instant construction project”), and Ulsan Construction Co., Ltd. (hereinafter “Suld Construction”) participated in the tendering procedure and was awarded the instant construction project.

2) On December 12, 2012, the Plaintiff entered into a contract for a long-term continuing construction contract (hereinafter “instant contract”) with respect to the instant construction project, setting the total amount of 12.9 billion won with respect to the instant construction project from Ulsan Construction to December 15, 2012, by the total construction period from December 12, 2012 to December 15, 2013.

3) After that, the Plaintiff and Ulsan Construction entered into the instant contract modification agreement several times on the grounds of extension of the construction period, and the details thereof are as listed below.

2. On December 12, 2012, 12. 12, 930,00,00 on December 12, 2012 to December 12, 2013, 12 to June 15, 2014, + 182. 3. 1. 2. 2. 1. 2. 1. 2. 3. 1. 2. 1. 2. 1. 2. 2. 3. 1. 2. 2. 1. 1. 2. 3. 2. 2. 1. 2. 1. 2. 3. 2. 1. 2, 206 to 4. 2. 1. 1. 3, 201, 206 . 1. 3. 2. 1. 1. 1. 3 from June 13, 2014 to August 1, 2014

(b) Commencement of construction and payment of construction cost;

Pursuant to Article 14 of the Fair Transactions in Subcontracting Act and Article 35 of the Framework Act on the Construction Industry, the Ulsan Construction commenced the instant construction work on December 17, 2012, and the details of the construction cost directly paid by the Plaintiff to the subcontractors (the “stock company” in the name of the company) of Ulsan Construction in accordance with the instant contract, are as follows.

6. 1: 4,50,50 6. 8. 8,50 6,50,000 6,000 6,005 20,000 6,000 6,000 6,000 6,06. 7. 25,000 6. 7,06,00 20,000 6. 7,06,00 20,00 6. 7,06,00 2,00 6,05,00 6. 7,05,00 2,06,00 6,05,00 2,06,00 6,06,05,00 7,05,06,00 7,06,00

1) Topographical construction

(c) Commencement of rehabilitation procedures and termination of the instant contract;

1) On October 22, 2014, the Ulsan Construction was decided to commence rehabilitation procedures (hereinafter “instant rehabilitation procedures”) by Seoul Central District Court 2014 Gohap175, and the Nonparty was appointed as the custodian of the Ulsan Construction.

2) After the commencement of the instant construction work after the decision was rendered to commence the said rehabilitation procedure, the Plaintiff requested the Nonparty to terminate the instant contract on November 20, 2014, November 26, 2014, and December 3, 2014, on a three-dimensional basis.

3) On December 11, 2014, the Nonparty, upon obtaining permission from the court, notified the Plaintiff that the instant contract will be terminated, which is a bilateral contract to which both parties perform, pursuant to Article 119(1) of the Debtor Rehabilitation and Bankruptcy Act (hereinafter “Rehabilitation Act”).

(d) Inspection of completedness;

On July 1, 2015, the Plaintiff received the instant construction site and conducted a sacriffying test on July 1, 2015, confirmed that the fixed rate of elevation at the time of the discontinuance of construction was 89.9% and that the amount of the completed payment was 11,631,186,818 won, and notified the Nonparty of the results of the sacriffying test on July 3, 2015.

(e) Acceptance of the lawsuit;

On the other hand, the Plaintiff filed the instant lawsuit against the Nonparty at the initial rehabilitation company’s administrator of Ulsan Construction. However, on September 19, 2016, the instant rehabilitation procedure was completed and Defendant Ulsan Construction Co., Ltd took over the instant litigation procedure (hereinafter “Defendant”) without distinguishing between the commencement of rehabilitation procedures and the completion of the rehabilitation procedure.

[Ground of recognition] Facts without dispute, Gap evidence 1 through 13, Gap evidence 17, 18, 19 (including each number), the purport of the whole pleadings

2. Summary of the plaintiff's assertion

The Plaintiff paid KRW 12,114,156,680 in total to the Defendant and the subcontractor based on the instant contract. However, after the instant contract was terminated, the Plaintiff’s inspection of the utility model at the time of the discontinuance of construction works did not exceed KRW 11,631,186,818 as a result of the Plaintiff’s inspection of the utility model at the time of the discontinuance of construction works. Accordingly, the Defendant is liable to return the amount of the construction cost excessively paid to the Plaintiff as above (i.e., KRW 482,969,862 (=12,114,156,680-11,631,186,818).

The above returned claim constitutes a public-interest claim arising out of the termination of the instant contract, which is an executory bilateral contract under Article 119 of the Debtor Rehabilitation Act, and thus, constitutes a public-interest claim. Therefore, the Plaintiff may seek the performance thereof to the Defendant by the instant lawsuit without resorting to the instant rehabilitation procedure pursuant to Article 121(2) of the Debtor Rehabilitation Act.

3. Determination on this safety defense

A. Summary of the defendant's assertion

A claim for the return of overpaid construction cost claimed by the Plaintiff constitutes a claim for restitution of unjust enrichment arising from the termination of the instant contract, not a claim for restitution arising from the termination of the instant contract, but a claim for restitution of unjust enrichment arising from the cause arising before the commencement of the rehabilitation procedure. However, the Plaintiff did not report the above claim as a rehabilitation claim in the instant rehabilitation procedure, and the rehabilitation plan approval order was issued in the state that the claim was not entered in the list of rehabilitation creditors. Therefore, even if the above claim claimed by the Plaintiff exists, the Defendant’s liability for such claim is exempted under the main sentence

B. Determination

1) "Rehabilitation claim" under Article 118 subparagraph 1 of the Debtor Rehabilitation Act refers to a claim on property arising from the cause of the occurrence of a claim, such as expression of intention, etc. before the commencement of rehabilitation procedures, which is based on the cause of the occurrence of the claim. Thus, even if the cause of the occurrence of the claim is not specifically determined or the maturity period arrives after the commencement of rehabilitation procedures, it does not affect the occurrence of the claim as a rehabilitation claim (see Supreme Court Decision 99Da55632, Mar.

In light of the above legal principles, the Plaintiff’s payment of the construction cost to the Defendant is before October 22, 2014 when the decision was rendered to commence rehabilitation proceedings against the Defendant. As such, the claim for return of unjust enrichment against the construction cost claimed by the Plaintiff as excessive payment to the Defendant compared to the actual maturity was already preserved before the commencement of rehabilitation proceedings. As long as the ground for the occurrence of a claim is based on the grounds before the commencement of rehabilitation proceedings, even if the specific amount of the construction cost to be returned was determined after settlement after the termination of the instant contract, the claim becomes a rehabilitation claim under the Debtor Rehabilitation Act even if the specific amount of the construction cost to be returned was determined after the termination of the instant contract

2) Meanwhile, under Article 121(2) of the Debtor Rehabilitation Act, when a bilateral contract is rescinded or terminated by either party, if the consideration received by the debtor exists among the debtor's property, the other party may claim the return of the consideration. If the consideration is not existing, the other party may exercise his/her right as a priority creditor with regard to the repayment of the value thereof. Therefore, whether the Plaintiff's claim for return constitutes a priority claim as stipulated in the above provision

In a case where a contractor returns advance payment, which is a pre-paid contract for construction works, due to the cancellation or termination of a contract, etc., the contractor’s obligation to return such advance payment is a kind of obligation to restore the original payment arising from the termination or termination of the contract (see, e.g., Supreme Court Decision 94Da54702, Mar. 22, 1996). According to the above facts, the advance payment for the first and several construction works of this case appears to have been settled in entirety upon the completion of the first and several construction works. The advance payment for the second and several construction works was not paid, and the amount of KRW 750,00,00,00 for the first time payment was paid (Evidence 2-2 of this case). The Plaintiff’s excessive payment is not an obligation to pay advance payment under the contract of this case, but an excessive repayment can not be deemed to have been made, regardless of whether the Plaintiff’s right to claim the return of the advance payment is an unjust enrichment under the Debtor Rehabilitation Act.

3) According to Article 251 of the Debtor Rehabilitation Act, when there exists a rehabilitation plan approval order, the debtor is exempted from liability for all rehabilitation claims and rehabilitation security rights except for the rights recognized under the rehabilitation plan or the Debtor Rehabilitation Act. This refers to a kind of natural obligation in existence of the debtor's liabilities, not for the debt to be extinguished actually, and the debt itself is still a natural obligation (see Supreme Court Decision 2001Da3122, Jul. 24, 2001 at the time of the implementation of the Company Reorganization Act).

However, the fact that the rehabilitation plan approval order was issued on July 1, 2015 when the Plaintiff did not report the claim to return the claim as a rehabilitation claim in the rehabilitation procedure of this case as a rehabilitation claim in the rehabilitation procedure of this case and that the claim is not recorded in the list of rehabilitation creditors can be acknowledged by taking into account either dispute between the parties or the overall purport of the pleadings in the statement of evidence No. 4. Ultimately, even if the Plaintiff’s claim for return exists, since the Plaintiff’s claim for return was not liable pursuant to Article 251 of the Debtor Rehabilitation Act, the Plaintiff cannot compel

Therefore, the instant lawsuit seeking the performance of its claim against the Defendant is unlawful as there is no benefit of lawsuit.

4. Conclusion

Therefore, since the lawsuit of this case is unlawful, it is decided to dismiss it. It is so decided as per Disposition.

Judges Maximum Weather (Presiding Judge) Ethical ethical ethic

Judges Lee Jae-young et al.

Note 1) The present trade name is “Woo Construction Co., Ltd.”.

2) Since the instant construction is in progress at the time, it would be more general to set off or deduct the excessive construction cost paid from unjust enrichment after the return of unjust enrichment. However, this is merely for the payment and settlement convenience of the construction cost between the parties, and is irrelevant to the establishment of a claim for return of unjust enrichment.