The rehabilitation debtor, who is the party taking over the lawsuit of the party taking over the lawsuit of the party taking over the lawsuit of the party taking over the lawsuit of the party taking over the lawsuit of the party taking over the lawsuit of the party taking over the lawsuit of the party taking over the lawsuit of the party taking over the lawsuit of the parties

Seoul Urban Transit Corporation (Law Firm KEL, Attorneys Hong-hwan et al., Counsel for the plaintiff-appellant)

Korean Bank (Law Firm Democratic, Attorneys White-soo et al., Counsel for the defendant-appellant)

May 31, 2017

Seoul Eastern District Court Decision 2014Gahap10356, 2014Gahap1175 decided November 16, 2016 (Intervention)

1. The judgment of the court of first instance is modified as follows.

(a) As to KRW 3,201,05,00 and KRW 2,507,493,083 among them and KRW 2,507,493,083 from December 4, 2012, 106,701,833 won from December 25, 2012 to December 26, 206,754,583 won from December 27, 2012 to 106,701,83 won from February 8, 2013 to 106,701,83 won from February 8, 2013 to 106,701,833 won, the Defendant shall pay interest at the annual rate of KRW 106,701,835 from April 29, 2013 to July 26, 2017; and each of them shall be repaid.

B. The plaintiff's claim and the remainder of the independent party intervenor are dismissed, respectively.

2. In accordance with the application for the return of provisional payments, the Plaintiff shall pay to the Defendant 3,974,280,793 won with the interest of 5% per annum from December 2, 2016 to July 26, 2017, and 15% per annum from the next day to the date of full payment.

3. Of the total costs of the lawsuit (including the cost of filing an application for the return of provisional payments), the part resulting from the intervention of an independent party shall be borne by the Plaintiff, and the portion resulting from the intervention of an independent party shall be borne by the independent party intervenor, and the remainder by the Defendant respectively.

4. Paragraphs 1(a) and 2 of this Article may be provisionally executed.

1. Purport of claim

(a) Main claim;

The defendant shall pay to the plaintiff 3,420,232,00 won with 6% interest per annum from December 4, 2012 to the delivery date of a copy of the complaint of this case, and 20% interest per annum from the next day to the full payment date.

(b) Intervention by independent parties;

The defendant shall pay to the intervenor of the independent party 3,420,232,00 won with 6% interest per annum from December 4, 2012 to the service date of a copy of the application for participation of the independent party from the next day to the day of complete payment, and 20% interest per annum from the next day to the day of complete payment.

2. Purport of appeal

(a) Defendant;

The part against the defendant in the judgment of the first instance is revoked, and the plaintiff's claim corresponding to the revocation is dismissed.

(b) An independent party intervenor;

The judgment of the first instance is revoked. The defendant shall pay to the intervenor of the independent party 3,420,232,00 won with interest of 6% per annum from December 4, 2012 to the service date of a duplicate of the application for intervention of the independent party of this case, and 20% per annum from the next day to the day of complete payment.

3. Purport of request for the return of provisional payments

As a result of the return of provisional payments, the Plaintiff shall pay to the Defendant the amount of KRW 3,974,280,793 as well as 5% interest per annum from December 2, 2016 to the date of the instant judgment, and 15% interest per annum from the next day to the date of full payment.

1. Summary;

A. Case progress

1) The Seoul Metropolitan City Urban Railroad Corporation (hereinafter referred to as “Seoul Metropolitan City Urban Railroad Corporation”) entered into a dong car purchase agreement with the Road Committee (hereinafter referred to as “Ro Committee”) to purchase approximately KRW 51.7 billion prior to the introduction of the subway route in the subway route. The Road has filed the instant lawsuit claiming for the payment of additional goods against the Urban Railroad Corporation, claiming that the goods should be increased according to the contract price adjustment due to price fluctuation, in spite of the delivery of the electric car to the Urban Railroad Corporation and the payment of the goods.

2) During the proceeding of the first instance trial, the rehabilitation procedure against the Commission was commenced. The independent party intervenor asserted that the creditor of the loan against the Commission is the mortgagee or transferee of the claim for additional goods payment in addition to the report of rehabilitation security rights in the rehabilitation procedure, and filed an application for participation by the independent party against the independent party intervenor seeking payment of the above additional goods payment against the independent party intervenor. The rehabilitation court approved the rehabilitation plan of the Commission and completed the rehabilitation procedure against the Commission.

3) The court of first instance rendered a judgment to partially accept the claim of the Committee and to dismiss the claim of an independent party intervenor, and the urban railway corporation and the independent party intervenor appealed.

4) In the first instance, the Plaintiff joined the window and took over the litigation procedure of the window on the grounds of the comprehensive succession of rights and obligations thereof. The Defendant, which was established by a merger between the urban railway corporation and the Seoul Qart, comprehensively succeeded to the rights and obligations of the urban railway corporation and taken over the litigation procedure of the urban railway corporation.

B. Order of determination

The issue is whether the contract amount adjustment due to price fluctuation has been established due to the purchase contract of the previous car and the contract between the plaintiff, the independent party intervenor and the defendant as a party to a local government (hereinafter “Local Contract Act”), and how the price of the goods to be increased if the contract amount adjustment has been established. In other words, the issue is whether the Committee holds the commodity price claim to be additionally paid to the Urban Railroad Corporation according to the contract amount adjustment due to price fluctuation.

In addition, the issue is whether anyone among the plaintiff and the independent party intervenor can claim for additional goods against the defendant in light of the legal principles of the Credit Transfer, Assignment of Claims and Debtor Rehabilitation and Bankruptcy Act (hereinafter "DRB") when the plaintiff and the independent party intervenor possess the goods price claim to be additionally paid by the Commission.

As such, the issues of the instant case are clearly divided into two parts, and the aforementioned issues are the premise for the determination of the following issues. As such, first of all, the part between the Plaintiff, an independent party intervenor and the Defendant is determined as “the establishment of a contract price adjustment due to price fluctuation and the determination on the existence of an additional claim for goods,” and then the part between the Plaintiff and the independent party intervenor shall be determined as “the determination on the claimant for the additional goods price.” The claim of this case shall be examined in the order above.

2. Determination as to the existence of contract price adjustment and additional commodity price claim due to price fluctuation

(a) Facts of recognition;

1) Conclusion of the first preceding transaction agreement

A) An urban railway corporation is a local government-invested public corporation established pursuant to Article 49 of the Local Public Enterprises Act for the purpose of constructing and operating the subway cities in Seoul Special Metropolitan City. The Seoul Special Metropolitan City is the joint implementation of the project for extending the section of the metropolitan railway lines of Incheon Metropolitan City, Seocheon-si and Seoul subway 7. On April 30, 2009, the Seoul Special Metropolitan City entrusted the urban railway corporation with the implementation of the part in charge of the Seoul Special Metropolitan City. The urban railway corporation posted a written request for bidding and a detailed statement of 56 amount of the same vehicle that will be put into the extension section of the subway line of the subway line of May 20

B) On June 11, 2010, and June 22, 2010, the Urban Railroad Corporation selected a window as a business operator through bidding, etc., concluded a dynamic manufacture purchase agreement with the Corporation divided the 56 volume from the Rour to the 56 volume from the Rour (referring to the total of 7 parts, given that the 56 volume per unit is composed of 8 parts per unit) into five parts, such as the 51,734,227,710 won of the total contract amount (hereinafter referred to as the “first preceding purchase agreement”). The first preceding purchase agreement concluded the 1st unit purchase agreement with the Urban Railroad Corporation within the budget of the 2010th unit purchase, and included the 1st unit purchase agreement with the 37th unit purchase by the 37th unit purchase by March 31, 2012.

본문내 포함된 표 물품구매계약서(갑)(장기계속1차) ○ 계약건명 : 7호선 연장구간 신규 전동차 제작구매(차체장치) ○ 계약일자 : 2010. 6. 11. ○ 품명 및 수량 : 전동차 7개 편성 ○ 계약금액 : 31,305,324,710원 ○ 계약기간 : 2010. 6. 11. ~ 2012. 6. 30. ○ 금차납품기한 : 2011. 2. 28 ○ 총납품기한 : 2012. 3. 31. ○ 총제조부기금액 : 31,305,324,710원 ○ 장기계속계약 : 2차년도 이후는 총금액에서 이미 계약된 금액을 공제한 금액 범위 내로 함 ○ 전동차 1개당 단가 : 4,472,189,245원 ○ 연도별 예산 및 납품기한 구분 2010년 2011년 2012년 예산 4,472,189,245원 13,416,567,735원 13,416,567,735원 수량 1개 3개 3개 납품기한 2011. 2. 28. 2011. 12. 30. 2012. 3. 31. 물품구매계약서(갑)(장기계속1차) ○ 계약건명 : 7호선 연장구간 신규 전동차 장치별 제작구매(대차장치) ○ 계약일 : 2010. 6. 11. ○ 품명 및 수량 : 전동차 7개 편성 ○ 계약금액 : 8,729,903,000원 ○ 계약기간 : 2010. 6. 11. ~2012. 6. 30. ○ 금차납품기한 : 2011. 2. 28. ○ 총납품기한 : 2012. 3. 31. ○ 총제조부기금액 : 8,729,903,000원 ○ 장기계속계약 : 2차년도 이후는 총금액에서 이미 계약된 금액을 공제한 금액 범위 내로 함 ○ 전동차 1개당 단가 : 1,247,129,000원○ 연도별 예산 및 납품기한 구분 2010년 2011년 2012년 예산 1,247,129,000원 3,741,387,000원 3,741,387,000원 수량 1개 3개 3개 납품기한 2011. 2. 28. 2011. 12. 30. 2012. 3. 31. 물품구매계약서(갑)(장기계속1차) ○ 계약건명 : 7호선 연장구간 신규 전동차 제작구매(인버터장치) ○ 계약일 : 2010. 6. 22. ○ 품명 및 수량 : 전동차 7개 편성 ○ 계약금액 : 7,061,000,000원 ○ 계약기간 : 2010. 6. 22. ~ 2012. 6. 30. ○ 금차납품기한 : 2011. 2. 28. ○ 총납품기한 : 2012. 3. 31. ○ 총제조부기금액 : 7,061,000,000원 ○ 장기계속계약 : 2차년도 이후는 총금액에서 이미 계약된 금액을 공제한 금액 범위 내로 함 ○ 전동차 1개당 단가 : 1,008,714,286원 ○ 연도별 예산 및 납품기한 구분 2010년 2011년 2012년 예산 1,008,714,286원 3,026,142,858원 3,026,142,858원 수량 1개 3개 3개 납품기한 2011. 2. 28. 2011. 12. 30. 2012. 3. 31. 물품구매계약서(갑)(장기계속1차) ○ 계약건명 : 7호선 연장구간 신규 전동차 제작구매(제동장치) ○ 계약일 : 2010. 6. 22. ○ 품명 및 수량 : 전동차 7개 편성 ○ 계약금액 : 2,784,000,000원 ○ 계약기간 : 2010. 6. 22. ~2012. 6. 30. ○ 금차납품기한 : 2011. 2. 28. ○ 총납품기한 : 2012. 3. 31. ○ 총제조부기금액 : 2,784,000,000원 ○ 장기계속계약 : 2차년도 이후는 총금액에서 이미 계약된 금액을 공제한 금액 범위 내로 함 ○ 전동차 1개당 단가 : 397,714,286원 ○ 연도별 예산 및 납품기한 구분 2010년 2011년 2012년 예산 397,714,286원 1,193,142,858원 1,193,142,858원 수량 1개 3개 3개 납품기한 2011. 2. 28. 2011. 12. 30. 2012. 3. 31. 물품구매계약서(갑)(장기계속1차) ○ 계약건명 : 7호선 연장구간 신규 전동차 제작구매(컴퓨터장치) ○ 계약일 : 2010. 6. 22. ○ 품명 및 수량 : 전동차 7개 편성 ○ 계약금액 : 1,854,000,000원 ○ 계약기간 : 2010. 6. 22. ~ 2012. 6. 30. ○ 금차납품기한 : 2011. 2. 28. ○ 총납품기한 : 2012. 3. 31. ○ 총제조부기금액 : 1,854,000,000원 ○ 장기계속계약 : 2차년도 이후는 총금액에서 이미 계약된 금액을 공제한 금액 범위 내로 함 ○ 전동차 1개당 단가 : 264,857,143원 ○ 연도별 예산 및 납품기한 구분 2010년 2011년 2012년 예산 264,857,143원 794,571,429원 794,571,429원 수량 1개 3개 3개 납품기한 2011. 2. 28. 2011. 12. 30. 2012. 3. 31.

C) The first prior purchase contract is included in the contents of the contract the request for proposal for the tender of the Urban Railroad Corporation, the special conditions for the purchase of goods (manufacturing), the general conditions for the purchase of goods (hereinafter referred to as the “general conditions for the contract”), the purchase of goods (hereinafter referred to as the “manufacture”) and the subscription for the purchase of goods (hereinafter referred to as the “tender subscription”). The main contents are as follows:

본문내 포함된 표 계약특수조건 제1조(적용) 이 조건은 도시철도공사가 집행하는 모든 물품구매(제조를 포함한다, 이하 같다)계약에 적용하며, 이 조건에서 정하는 경우를 제외하고는 계약일반조건에서 정하는 바에 의한다. 제15조(물가변동으로 인한 계약금액 조정방법) 계약일반조건 제11조의 규정에 의하여 물가변동으로 인한 계약금액의 조정 시 (품목조정률, 지수조정률)을 적용한다. 제18조(장기계속계약 및 계속비계약) ① 장기계속계약을 체결하는 경우 제2차 이후의 계약은 부기된 총 계약금액에서 이미 계약한 금액을 공제한 금액의 범위 안에서 계약을 체결한다. 제21조(계약해석의 우선순위) 계약 내용에 대한 해석의 우선순위는 다음 각 호의 순으로 한다. 1. 계약서(갑·을지) 2. 물품구매(제조)계약추가특수조건 3. 계약특수조건 4. 계약일반조건 5. 물품구매(제조)입찰권유서 6. 입찰유의서 7. 물품구매 규격서(시방서 및 보완규격 포함) 계약일반조건 Ⅰ. 총칙 2. 용어의 정의 다. 이 조건에서 따로 정하는 경우를 제외하고는 도시철도공사 계약규정, 지방자치단체를 당사자로 하는 계약에 관한 법률 시행령 및 시행규칙, 도시철도공사 예규 입찰유의서에서 정하는 바에 의한다. Ⅱ. 물품구매계약의 체결 1. 계약문서 가. 계약문서는 계약서, 규격서, 유의서, 계약일반조건, 계약특수조건, 산출내역서 등으로 구성한다. 다만, 산출내역서는 Ⅵ-1 및 2의 수량조절 및 물가변동으로 인한 계약금액의 조정과 Ⅷ-3-라항목의 규정에 의한 기납대금의 지급시에 적용할 기준으로서 계약문서의 효력을 가진다. Ⅲ. 채권의 양도 가. 계약상대자는 이 계약에 의하여 발생한 채권(대금청구권)을 제3자에게 양도할 수 있다. Ⅵ. 수량조절 및 계약금액의 조정 2. 물가변동으로 인한 계약금액의 조정 가. 물가변동으로 인한 계약금액의 조정은 계약규정 제69조 및 시행내규 제75조의 규정에 정한 바에 의한다. 나. 동일한 계약에 대한 계약금액의 조정 시 품목조정률 및 지수조정률을 동시에 적용하여서는 아니 되며, 계약을 체결할 때 계약상대자가 지수조정률 방법을 원하는 경우 외에는 품목조정률 방법으로 계약금액을 조정하도록 계약서에 명시되어야 한다. 다. 가 항목의 규정에 의하여 계약금액을 증액하는 계약상대자의 청구에 의하여야 하며, 조정된 계약금액은 직전의 물가변동으로 인한 계약금액 조정기준일부터 90일 이내에 이를 다시 조정할 수 없다. 마. 발주기관은 가 내지 라 항목의 규정에 의하여 계약금액을 증액하는 경우에 계약상대자의 청구를 받은 날부터 30일 이내에 계약금액을 조정하여야 한다. 입찰제안요청서 1.1 사업개요 2) 본 사업은 5개 장치분야를 각각 구매하여 조립하는 방법으로 추진한다. 7) 본 사업기간은 계약일부터 2012. 6. 30.까지로 하며, 1차 납품은 1개 편성 8량분에 대한 물품을 2011. 2. 28.까지 납품하여야 하며, 이후 납품물량은 안정성을 검토한 후 도시철도공사의 납품요구 일정에 따른다. 3.13 대금지급 조건 1) 선급금은 계약 후 연도별 납품요구 물품 금액의 30%까지 지급할 수 있으며, 지급요령은 ‘지방자치단체 계약체결ㆍ이행에 따른 선금 및 대가 지급요령’에 의한다. 단, 1차 납품요구 물품에 대해서는 2010. 6. 30.까지는 2010년 재정조기집행계획에 따라 선금을 70%까지 집행할 수 있다. 2) 대금지급은 완성차 조립 후 구내시운전을 완료하여 기능이 확인된 때에 50%를 지급한다. 3) 물품 금액 중 잔여대금(시운전 유보금) 20%는 본선 성능시험 및 시운전 완료 후 차량기지에서 인수검사를 완료하고 차량성능에 이상이 없을 경우 지급한다. 3.15 계약금액 조정 1) 본 사업과 관련한 계약 후 현저한 물가변동으로 인하여 계약금액을 조정할 필요가 있는 경우에는 그 계약금액을 조정할 수 있다. 2) 각 장치별 부품 및 자재가 계약 후 해당 자재의 가격 증감률이 연간 100분의 3 이상인 때에는 그 자재만 계약금액을 조정할 수 있다(단, 계약 후 90일 경과 이후 적용 가능함) 입찰유의서 제11조(장기물품제조 등의 입잘) 장기물품제조 등의 경우에는 입찰시 총 물품제조 등을 대상으로 하여 입찰하여야 한다. 제19조(계약의 성립) 계약은 계약서를 작성하고 계약담당자와 낙찰자가 기명ㆍ날인함으로써 확정된다.

D) By February 28, 2011, the Committee completed the supply of one set of eight parts per electric vehicle (hereinafter referred to as “one set of items”) subject to the primary purchase by February 28, 201. By June 8, 2011, it received the price for the goods of one set of items from the Urban Railroad Corporation by June 8, 201.

2) Conclusion of the second preceding transaction agreement

A) The Urban Railroad Corporation attempted to purchase the 48th amount of the previous 201 and the previous 3th 2012 purchase within the scope of the budget in 2011 and 2012. However, due to the delay in allocating the project cost for Incheon Metropolitan City and Seocheon-si, a joint project operator in Seoul Special Metropolitan City, the time of purchase was delayed.

B) On December 29, 2011, the Urban Railroad Corporation entered into a new agreement on the manufacture and purchase of new electric vehicles with the content of purchasing the remaining six parts of the electric vehicles from the Road on the remaining 48 minutes of the electric vehicles (hereinafter “the second electric vehicle purchase agreement”). The second electric vehicle purchase agreement was concluded by dividing the two parts into five parts: (a) the first electric vehicle purchase agreement was entered into; and (b) the first electric vehicle purchase agreement was entered into by adding the unit price per unit and total contract amount per unit to the first electric vehicle; however, in comparison with the first electric vehicle purchase agreement, there was a difference between the two parts of the first electric vehicle and the first electric vehicle purchase agreement, excluding the price for the first portion of the first electric vehicle which has already been purchased from the total contract amount, and the sales price for the goods was determined by the remaining amount after deducting the price for the first portion of the goods from the total contract amount. In addition, the first electric vehicle purchase agreement was amended in the order of 2011 and 2012 to the second electric vehicle purchase agreement.

[Attachment 1 2.2. 2. 2. 2. 2. 2. 2. 2. 3 : 2. 1: from June 1 to 22. 2, 201, the name and quantity of 7 : 4,472,189,245 4,247. 1,247,129,00 1,247. 247,129,129. 2. 1. 2. 2. 2. 2. 2. 3: 1: 208,00 1,08,714,714,714,714,714, 286. 286. 1. 36. 2. 2. 3 : 46. 7 : 1. 1. 1. 2. 3 : 75 Gabolololololololololololololol.

3) Application for the adjustment of the contract amount due to price fluctuations by the Commission

A) On June 11, 2012, the Road Committee made an application for the adjustment of the contract amount due to price fluctuations in the contents that increase the contract amount in KRW 1,747,138,00 by applying the index adjustment rate of 3.94% up to the date of the first adjustment to the Urban Railroad Corporation according to the index adjustment rate method: ① January 31, 201 as the index adjustment rate of the first adjustment date; ② May 2, 2011, which was 90 days after the date of the second adjustment date, as the index adjustment rate of KRW 3.63% during that period, applied the index adjustment rate of KRW 1,673,094,00.

B) On July 6, 2012, the Urban Railroad Corporation held a window and discussed the adjustment of the contract amount, but on July 27, 2012, the Committee rejected the adjustment of the contract amount by asserting that the adjustment of the contract amount due to price fluctuations should be based on the product adjustment rate rather than the index adjustment rate.

(iv) the implementation and partial cancellation of the second preceding purchase contract;

A) Under the secondary purchase contract, the Lane supplied the 48 share of the 2nd and 7th and 48th and the 41,387,382,170 won in total as the price for goods from the Urban Railroad Corporation until March 29, 2013. The time for supply and payment by the 2nd and the 2nd and the following table are as follows.

1. 2. 3. 1. 2. 3. 2. 1. 3. 2. 3. 1. 2. 3. 1. 2. 1. 3. 2. 1. 2. 1. 3. 1. 4. 1. 2. 1. 2. 1. 3. 1. 2. 1. 4. 2. 1. 2. 1. 4. 1. 2. 1. 4. 1. 2. 1. 2. 4. 1. 2. 1. 4. 2. 1. 2. 4. 1. 2. 1. 4. 2. 1. 2. 1. 4. 2. 1. 4. 1. 2. 1. 2. 1. 2. 1. 4. 1. 2. 8. 2. 1. 2. 1. 2. 1. 1. 1. 8. 1. 2. 2. 1. 1. 2. 1. 1. 2. 1. 1. 1. 2. 1. 1. 1. 1. 4.

B) Meanwhile, the urban railway corporation did not perform the obligation to supply the designated spare parts and technical materials (hereinafter collectively referred to as “reserves, etc.”) that the Committee decided to supply together with the portion of the set-off (7). The urban railway corporation did not pay KRW 1,478,120,800 for the remaining portion of the set-off (7). On April 3, 2014, the urban railway corporation notified the Committee of the cancellation of the former purchase contract without a separate declaration of intention if it did not perform the time until April 17, 2014. Since the street committee did not supply spare parts, the urban railway corporation notified the Committee that it would discharge the delivery of spare parts, etc. until April 30, 2014, and notified the latter of the cancellation of the second unit purchase contract without a separate declaration of intention.

5) Commencement of rehabilitation procedures for the Commission, etc.

A) On May 15, 2014, the Committee filed the instant lawsuit against the Urban Railroad Corporation. Separately, on May 14, 2014, the Seoul Central District Court filed an application for commencement of rehabilitation procedures on May 14, 2014 (hereinafter “Rehabilitation Court”). The rehabilitation court decided to commence rehabilitation proceedings on June 18, 2014, and the non-party, who is the representative director of the Committee, is deemed the administrator. The rehabilitation procedure for the Road was completed on October 23, 2015, and the administrator took over the legal proceedings of the Committee on July 16, 2014, and thereafter, on December 3, 2015, the Committee took over the legal proceedings of the administrator on December 3, 2015.

B) On February 13, 2017, the Plaintiff combined the window and comprehensively succeeded to the claim and the obligation thereof. On March 22, 2017, the Plaintiff taken over the proceedings of the window (hereinafter referred to as “Plaintiffs”, except where it is particularly necessary to distinguish the window, manager, and the Plaintiff from each other).

C) Meanwhile, on May 31, 2017, the Defendant comprehensively succeeded to the claims and obligations of the Urban Railroad Corporation and the Seoul Urban Railroad Corporation after the merger with the said Corporation and comprehensively succeeded to the claims and obligations of the said Corporation. On June 22, 2017, the Defendant taken over the legal proceedings of the Urban Railroad Corporation (hereinafter “Defendant”), except where it is particularly necessary to distinguish between the Urban Railroad Corporation and the Defendant.

[Ground of recognition] Facts without dispute, Gap's statements, Gap's 1 through 5, 9, 10, 11, Eul's statements, 11, 12, 15 through 28 (including each number; hereinafter the same shall apply) and the purport of the whole pleadings

B. The parties' assertion

1) The plaintiff and the independent party intervenor's assertion

The price of goods under the contract for the first and second preceding purchase may be increased or decreased by the contract amount in the event of price fluctuation. However, in light of the interpretation of the contract and the purport of the Local Contract Act, it is reasonable to view that the road commission, which is the contracting party, is able to choose either of the product adjustment rates or the index adjustment rates under the contract for the preceding purchase contract where multiple parts are required. Moreover, it is practically impossible to investigate the price increase in the individual items or the items by the product adjustment rate and verify the price increase in the individual items or the items. Ultimately, in this case, the contract amount adjustment rate should be based on the index adjustment rate, as chosen by the Committee.

The second preceding purchase contract is merely a extension of the supply period, etc. without maintaining the contract unit price as it is, and thus, it should be the first adjustment base date on January 31, 201, which was 90 days after the date of the conclusion of the first preceding purchase contract, and on May 2, 2011, which was 90 days after the date of the first adjustment base date, should be the second adjustment base date.

Ultimately, the defendant is liable to pay 3,420,232,00 won for additional goods calculated in accordance with the Local Contract Act and damages for delay thereof to the plaintiff or the intervenor of the independent party.

2) The defendant's assertion

(1) In light of the fact that Article 3.15(2) of the written request for a bid proposal included in the terms and conditions of the contract for the first and second preceding purchase, it shall be deemed that there has been an agreement between the parties making a decision to adjust the contract amount according to the item adjustment rate, and even if the method of contract adjustment is not designated, the contract amount adjustment shall be based on the item adjustment rate in light of the purport of the Local Contract Act, even if the method of contract adjustment is not designated.

② The purpose of the second preceding purchase contract is to extend the contract period and maintain the price of goods at the same level. As such, the date of the second preceding purchase contract ought to be 90 days after the date of conclusion of the second preceding purchase contract. However, the Guro Committee has filed an application for the adjustment of the contract amount with the time of the transfer as the base date, so the said application for adjustment of the contract amount is unlawful.

(3) When calculating according to the product adjustment rate, there is no additional commodity price due to price fluctuation, and it is difficult to see that the Committee actually bears the manufacturing cost, etc. of the previous car due to price increase, and there is no substantial reason for the contract adjustment.

(4) As long as the Defendant has already paid all the remaining amounts for six of the seven preceding parts, the contract amount is not obligated to increase with respect to the previous parts, and there is no obligation to adjust the contract amount with respect to the previous parts lawfully rescinded under the contract for the second preceding part.

C. Whether the contract price adjustment has been made due to price fluctuation

1) Requirements for establishment

Article 22 of the Local Contract Act, Article 73 of the Enforcement Decree of the same Act, and Article 72 of the Enforcement Rule of the same Act, the contract amount adjustment due to price fluctuations in accordance with ① The lapse of 90 days from the date of signing the contract (time requirements) and ② At the same time, there occurs a cause of increase or decrease in the rate of adjustment of the item or the index adjustment rate of at least 3/100 on the basis of the date of bidding, etc., and the cause of adjustment is established by legitimate application for contract amount (see Supreme Court Decision 2004Da28825, Sept. 14, 2006, etc.).

In the first and second preceding purchase agreements, the requirements for establishing the contract price adjustment according to price fluctuation shall not be separately determined, and the general terms of the contract stipulate that the contract shall comply with the Enforcement Decree of the Local Contract Act unless otherwise stipulated in the general terms of the contract. Thus, we examine whether the contract price adjustment has been established due to price fluctuation in accordance with the above legal principles as above.

2) Legal nature of the first and second purchase agreement

A) The adjustment of the contract amount due to price fluctuation is a normal contract or a long-term continuing contract, etc. Therefore, the point of time is different depending on whether the contract in question is a long-term contract, etc. Therefore, we first examine the legal nature of the first and second preceding purchase contract.

B) A long-term continuing contract refers to a contract method in which the total contract amount determined by a tender, etc. is written in addition to the contract amount, etc., and the contract amount is entered into within the budget limit of the pertinent year to carry out the manufacture of the first product. A contract after the second product manufacture refers to a contract method within the scope of the amount calculated by deducting the already contracted amount from the total contract amount (see Article 78(3) and (2)

C) The terms and conditions of the contract are included in the terms and conditions of the contract for the 1st and the 2nd unit purchase contract, and the local contract law and the Enforcement Rule of the Local Contract Act provide that all the 1 and the 2nd unit purchase contract shall apply unless otherwise stipulated in the general terms and conditions of the contract in question. The first unit purchase contract stipulates that all the 56th unit purchase contract for the 56th unit unit purchase contract for the 2nd unit purchase contract is a long-term contract for the 48th unit purchase contract for the 48th unit unit purchase contract for the 2nd unit purchase contract, which includes the total amount of the 56th unit purchase contract for the 56th unit unit purchase contract for the 2nd unit purchase contract, as seen earlier.

According to the above facts, the first and the second preceding purchase contract is not a separate contract, or the second preceding purchase contract is not merely a mere extension of the due date, etc. of the first preceding purchase contract, but it is reasonable to interpret that the contract constitutes a contract to be entered into by the number of preceding contracts according to the method of a long-term continuing contract in consideration of the budget for the pertinent year.

3) Whether the requirements are met

A) The contract amount adjustment due to price fluctuation may be concluded after the lapse of 90 days from the date of concluding the first contract in the case of a long-term continuing contract, and shall not be re- adjusted within 90 days from the date of the first contract (see the main text of Article 73(1) of the Enforcement Decree of the Local Contract Act). The reference date here refers to the first day satisfying all the requirements for contract amount adjustment (see, e.g., Supreme Court Decision 2001Da21113, Jan. 10, 2003).

B) The contract price adjustment is a long-term contract, and the first, second, the second, the second, the second, the second, and the second, the contract price adjustment is possible after the lapse of 90 days from the date of conclusion of the first, the first, the first, the first, the contract price adjustment. According to the facts of recognition, the first, the first, the first, the first, and the second, the contract price adjustment is made on June 1, 201, which was the date of the first, and the 90 days from June 22, 201, which was the date of the conclusion of the first, the first, the first, the second, and the second, the second, the second, the second, the second, the second, the second adjustment base date was May 2, 201, which was 90 days from the date of the first adjustment. Accordingly, once, the first, the first, the committee's application for the contract price adjustment is deemed to meet the time requirements (the point of time designated by the committee can be examined after the second).

C) As to this, the Defendant asserts that, while entering into the secondary franchise purchase contract, the term of the contract was extended by the Committee, but it was determined that there was no change in the price of the goods by agreement that the contract would be the same as the existing one. The Defendant asserts that, rather than the day after the lapse of 90 days from December 29, 201, which was the date of entering into the secondary franchise purchase contract, the window would rather be the day before January 31, 201 and May 2, 201, which was the date of entering into the said secondary franchise purchase contract, deeming the contract as the date of adjustment does not meet the time requirements for the adjustment of the contract amount.

According to the statement in Eul evidence No. 4, it is recognized that when entering into the second electric vehicle purchase contract, the Committee has agreed to the change of the supply period without changing the contract price, it has prepared a written consent to the change of the supply period and delivered it to the Urban Railroad Corporation.

However, the waiver of a claim or exemption of a debt is not necessarily required to be made explicitly by the express declaration of intent, and it is also necessary to recognize the waiver of a claim through the interpretation of a creditor's act or declaration of intent. However, for such recognition, it is necessary to strictly determine whether to apply the act or declaration of intent of the creditor in accordance with the content of the pertinent legal relationship (see Supreme Court Decision 2010Da40505, Oct. 14, 2010, etc.). In all the following circumstances recognized by comprehensively taking into account the facts and the entire arguments, i.e., (i) a written consent drawn up by a committee does not state that it gives up the right to adjust the contract amount due to price fluctuation, and (ii) a second same purchase contract was concluded by the second preceding purchase contract in accordance with a long-term long-term contract, and thus, the second preceding purchase contract was concluded by the defendant from the date of the second purchase contract to the date of the second purchase contract to the date of the second purchase agreement, and even if it was agreed by the committee to do not accept the second purchase agreement.

4) Whether substantive requirements are satisfied

A) Criteria for determination

The interpretation of a juristic act shall be reasonably interpreted in accordance with logical and empirical rules, common sense of society, and transaction norms, by comprehensively taking into account the contents of the language and text, in a case where the objective meaning given by the parties to the juristic act is clearly determined, and where such objective meaning is not clearly revealed by the language and text expressed by the parties, the motive and background leading up to the juristic act, the purpose and genuine intent of the parties to the juristic act, transaction practices, etc., and in line with the ideology of social justice and equity (see Supreme Court Decision 91Da35571 delivered on May 26, 1992, etc.).

B) Whether there was any designation or agreement on the method of contract price adjustment

(1) According to the facts of recognition, the first and second preceding purchase contracts include the written request for bid, special conditions of contract, general conditions of contract, and bid bond in the contents of contract. The order of interpretation in the special conditions of contract is based on the purchase contract, special conditions of contract, general conditions of contract, bidding solicitation (in this case, the request for tender offer is applicable) and the order of tender bond. The contract special conditions of contract, the adjustment of the contract amount due to price fluctuation in the general conditions of contract can be based on the item adjustment rate or the index adjustment rate. The contract officer, etc. shall use one method of the item adjustment rate or index adjustment rate when adjusting the contract amount in a single contract, and the contract officer, etc. shall specify the contract amount in a way of item adjustment, except where the other party to the contract wishes to adjust the index adjustment rate at the time of concluding the contract. However, in detail, the contract does not provide for any method of item adjustment or index adjustment in the first and second preceding purchase contract.

In addition, comprehensively taking account of the statements in the evidence Nos. 6, 7, and 8, and 9, the Seoul Metropolitan Government shall hold a meeting to discuss the application of any of the product adjustment rates and the index adjustment rates on July 6, 2012 on the premise that the Seoul Metropolitan Government and the Ministry of Public Administration and Security should not specify the method of the contract price adjustment in the first and second bicycle purchase contract after receiving an application for the adjustment of the contract price from the Guro Committee. In addition, in light of the fact that the Seoul Metropolitan Government and the Ministry of Public Administration and Security discussed the relevant contents, it is insufficient to recognize the defendant's assertion that the method of the adjustment of the contract price due to price fluctuation was specified in the item adjustment rate or there was an agreement between the parties, and there is no other evidence to acknowledge

(2) In particular, Article 3.15(2) of the written request for a tendering proposal provides that “where the rate of increase or decrease of the price of the relevant material after a contract is made by each device is at least 3/100 per annum, only the relevant material may be adjusted (Provided, That this is applicable after the lapse of 90 days after the contract).” However, this appears to the same purport as stipulated in Article 73(6) of the Enforcement Decree of the Local Contract Act that the contract amount shall only be adjusted in cases where an increase or decrease of the price is made in excess of a certain standard due to the price fluctuation in the specific specification in the contract for a construction project, notwithstanding the method of the item adjustment rate or the index adjustment rate, unlike the method of the item adjustment rate or the index adjustment rate for all the item group or the item group, the above provision in the written request for a tendering proposal shall be interpreted to the effect that only the contract amount can be adjusted in cases of increase or decrease in the price of a specific material above a certain level. As such, the Defendant’s assertion that the above provision would be inconsistent with the preceding item adjustment agreement.

C) Possibility of choosing the contract price according to the index adjustment rate

(1) Article 73(2) of the former Enforcement Decree of the Local Contracts Act (amended by Presidential Decree No. 24860, Nov. 20, 2013) provides that “Any contracting officer, etc. shall specify in the contract that the contract would adjust the contract amount by the method of the index adjustment rate, except where the contracting officer wishes to do so.” This is merely the purport of imposing on the contracting officer the obligation to clarify the method of the contract adjustment, but it is not the purpose of supplementing the contract contents, and thus, there was an unclear problem as to whether the contract amount should be adjusted by any method of the index adjustment rate and index adjustment rate, if the contracting officer does not specify the method of contract adjustment in the contract, in light of the above purport of Article 73(2) of the former Enforcement Decree of the Local Contracts Act (amended by Presidential Decree No. 24860, Nov. 20, 2013).

(2) The product adjustment rate is calculated by dividing the sum of the amounts calculated by multiplying the fluctuation in the quantity of each item or item that constitutes the contract amount to be implemented after the date of adjustment by the contract amount to be implemented after the date of adjustment (Article 72(1) of the Enforcement Rule of the Local Contract Act); the index adjustment rate is calculated by the fluctuation rate of each item or item, and various indexes, etc. that constitute the contract amount to be implemented after the date of adjustment (Article 72(4) of the Enforcement Rule of the Local Contract Act); the product adjustment rate can be more accurate than the index adjustment rate; however, in reality, the product adjustment rate is more accurate than the index adjustment rate; however, the product adjustment rate and the index adjustment rate are the difference in the method, and it cannot be deemed that any one method is more favorable or unfavorable to one of the parties to the contract. In other words, depending on the market situation, the fluctuation in the product adjustment rate and the index adjustment rate may vary, and in particular, the product adjustment rate may be reduced in accordance with the price fluctuation.

(3) Article 6 of the Local Contract Act provides that a contract shall be concluded and implemented in accordance with the principle of trust and good faith, and in light of the above fact that Article 73(2) of the former Enforcement Decree of the Local Contract Act imposes an obligation on the contracting officer to specify the method of contract adjustment in the contract, if the contracting officer fails to properly perform his/her obligations imposed under Article 73(2) of the former Enforcement Decree of the Local Contract Act and does not specify the method of contract adjustment in the contract, it is reasonable to deem that the party to the contract can choose one of the product adjustment rate or the index adjustment rate when the Committee, which is the counter-party, applies for the contract adjustment by allowing the contracting officer to choose the index adjustment rate at the time of signing the contract.

(4) As set out in the request form for a tender offer, the first and second preceding units purchase contracts include assembling a large number of parts to manufacture each device (such as string, borrowing, server, Dong, computer) and to supply the same prior to the completion by re-breaking them again. In accordance with the product adjustment rate, there is a large amount of cost and time to grasp the prices of items or items at the time of the base date for the adjustment, and there are parts and materials whose price is not verified by authorized data such as price data, and even if the price is identified at the time of the base date for the adjustment, it is difficult to trust if there is no objective data such as tax invoices and specifications of transactions at the time of the base date for the adjustment. As can be seen from Gap evidence 21-2, it is difficult to see that the Defendant’s selection of the index adjustment rate in this case in light of the fact that the index adjustment rate was specified in another preceding unit purchase contract similar to the Defendant.

(5) Meanwhile, according to the appraisal result of the first instance court appraiser ○○○○○○○, the Plaintiff failed to submit sufficient data on the case where the Plaintiff is using the method of product adjustment in the course of appraisal, which led to a low reliability in the calculation of the contract amount according to the item adjustment rate. However, this appears to be a big reason for the Plaintiff to have been engaged in appraisal after considerable time after the conclusion of the contract for the first and second preceding purchase, and it appears that the Plaintiff intentionally refused to submit data. Therefore, even if it is affirmed, it is difficult to conclude that the choice of the index adjustment rate would lead to an unfair outcome.

D) Whether there exist grounds for the adjustment of contract amount in accordance with the index adjustment rate

(1) Since the standards, etc. for the adjustment of the contract amount due to price fluctuation in the first and second preceding purchase contracts have not been separately stated, if 90 days have elapsed since the date of conclusion of the contract under the general conditions of the contract and the Enforcement Decree of the Local Contract Act, and if the index adjustment rate or the product adjustment rate calculated as of the date of tender or contract execution increases by more than 3/100, the Committee, a contracting party, may apply for the increase of the contract amount by selecting an increased adjustment rate of not less than 3/100.

(2) Comprehensively taking account of the overall purport of the arguments as a result of the appraisal by ○○○○○○ of the first instance trial, the index adjustment rate based on January 31, 201, which was 90 days or more from the date of the conclusion of the final contract for the first instance-class purchase, is 3.99% of the body device, 3.9% of the lending device, 3.86% of the string device, 3.85% of the string device, 3.85% of the computer device, and 3.85% of the computer device, which is 3/100 or more, the base date for the first adjustment. In addition, since the index adjustment rate based on May 2, 2011, which was 90 or more days from the date of the first instance-class adjustment, is 3.54% of the rent device, 3.7% of the price adjustment rate per 30% or more of the price adjustment rate per 2.37% of the computer.30% of the price per 2.

(3) The Defendant asserts to the effect that there is no ground to recognize the adjustment of the contract amount due to price fluctuation, since it is difficult to view that the Defendant entered into a contract with the subcontractor on the parts and services required for the manufacture of the street car, and that the said subcontractor actually shared or paid the additional costs or costs due to price fluctuation.

On the other hand, the contract amount adjustment due to price fluctuation is established by the legitimate adjustment of the contract amount against the other party to the contract in the event of a cause for adjustment stipulated in the Local Contract Act and the contract, etc., and it is not construed that the Urban Railroad Corporation is obligated to lawfully apply for the adjustment of the contract amount with the reason for the adjustment of the contract amount to the other party to the contract. The fact that the cost to be borne by the Committee due to price fluctuation has increased additionally, or that the increased cost has been actually paid. Furthermore, it is difficult to conclude that the submitted evidence alone is unlikely to adjust the contract amount due to price fluctuation, or that there is no additional expense to the Committee due to price fluctuation. Accordingly, the defendant's assertion is rejected.

5) Whether the procedural requirements are met

A) Comprehensively taking account of the facts of recognition and the overall purport of the statement and the argument as seen earlier, the Committee applied for the contract price adjustment against the Urban Railroad Corporation on June 11, 2012 on the ground that there was a cause for the contract price adjustment due to price fluctuation according to the index adjustment rate after the date of the first and second adjustment. As such, the Committee filed an application for contract price adjustment with the Urban Railroad Corporation by lawful means, and the effect of the application is that the contract price adjustment was established.

B) As to this, the Defendant asserts to the effect that the application for the adjustment of the contract amount is unlawful on the grounds that there is difference between the index adjustment rate computed by the Committee at the time of filing the application for the adjustment of the contract amount and the numerical value calculated as a result of appraisal in the first instance. However, since there is no special requirement regarding the application for the adjustment of the contract amount in the contract, etc., the submission of materials that can prove the grounds for adjustment should be deemed a legitimate application for adjustment, and even if there is a little error in the evidentiary documents or there is a difference between the parties as to the application index, the application for

6) Sub-determination

Therefore, the contract amount adjustment due to price fluctuation has been established by legitimate application of the Commission.

(d) Calculation of the price of additional goods by the adjustment of contract amount;

1) Determination as to the claims of the plaintiff and the independent party intervenor

A) On January 31, 201, the Plaintiff and the independent party intervenor: (i) at KRW 51,734,227,710, which is the aggregate of the contract amounts of the first preceding purchase contract at KRW 51,734,227,710, which is the amount equivalent to the one minute high; (ii) KRW 7,390,603,710 (i.e., KRW 51,734,227,710 x rate of 0.1428,10 ; (iii) the adjusted price of KRW 44,343,624,00 (i.e., KRW 51,734,227, KRW 710 - KRW 7,390, KRW 390, KRW 400, KRW 3600, KRW 360, KRW 4030, KRW 4639,300, KRW 204,394639).

B) In full view of the overall purport of the pleadings as a result of the appraisal by ○○○○○○○○ of the first instance trial, in cases where the Plaintiff and an independent party intervenor excluded progress payment related to the portion of the first instance planning that was already implemented prior to the date of the second conciliation from the amount subject to price fluctuation, as sought by the Plaintiff and the independent party intervenor, the goods price to be increased as of January 31, 201 is KRW 1,749,142,000, and the goods price to be increased as of May 2, 2011, the goods price to be increased as of May 2, 201, is KRW 1,671,58,000, which is the date of the second conciliation. In this regard, the Defendant asserts the amount to be deducted, and this is examined below.

2) Whether the payment for the completed portion paid after the date of the conciliation should be excluded from the cost of price fluctuation application

A) The defendant asserts to the plaintiff that since the payment was made in full for 6 parts among 7 parts of the 7 parts of the 7 parts of the 7 parts of the 7 parts of the 1 and 2nd purchase contract, the amount already paid cannot be adjusted.

B) The adjustment of the contract amount is not automatically performed at the same time after a certain period of time has elapsed from the execution date of the contract, and even if the cause for adjustment occurred as a result of an increase or decrease in the item adjustment rate or the index adjustment rate above a certain ratio, it is not automatically performed by the party to the contract. Even if the consideration was already paid after the first day of the date of the adjustment where the cause for adjustment occurred, if the consideration was already paid before the adjustment, regardless of the increase or decrease adjustment, or if it was paid after the party applied for the adjustment of the contract amount, it shall be considered as a provisional payment under the previous contract terms and conditions, with the consideration of the subsequent adjustment of the contract amount, and thus, it shall be deemed as subject to the adjustment of the contract amount by being included in the cost of application of price fluctuation (the part implemented after the base date of the contract amount). However, it shall be deemed that the price that has completed the payment finally without the consideration between the parties in mind is not subject to the adjustment of the contract amount from the party’s trust protection point (see, e.g., Supreme Court Decision 2004Da28

C) On the other hand, the Plaintiff or the independent party intervenor sought the adjustment of the contract amount only for the remaining contract amount excluding KRW 7,390,603,710,00,000, which has already been supplied by the Committee. Thus, there is no reason to deduct the pertinent amount from the price for applying price fluctuation again. In addition, in the case of advance payment among the goods price for the remaining 2 through 7 items, 13,303,087,090, which was paid before the application for the adjustment of the contract amount was made by the Committee for advance payment, and in the case of other goods, it was paid after the application for the adjustment of the contract amount. Accordingly, the advance payment cannot be deemed as a temporary payment, and it is not deemed that the advance payment was planned and paid by the application for adjustment after the payment after the intermediate payment and remainder. Furthermore, the Defendant’s argument that the advance payment would not be subject to price fluctuation application even for the period of advance payment under Article 73(3) and 27(1)2 of the Enforcement Decree of the Local Contract Act.

3) Whether relevant parts, such as spare parts, should be excluded from the amount of adjustment

A) According to the facts of recognition, the part on the spare goods, etc. among the second franchise purchase contracts was removed from the limits of the period scheduled in the notification of cancellation by April 14, 2014 and the notification as well as the period scheduled in the notification by the Committee on the ground of non-performance of the obligation to supply goods, such as spare goods, etc., by the Urban Railroad Corporation. Furthermore, since the Plaintiff did not perform the above obligation up to now, it is reasonable to deem that the Defendant was exempted from the obligation upon the application for contract price adjustment. Accordingly, this part of the Defendant’s assertion is

B) As to this, the Plaintiff asserted that, when the Urban Railroad Corporation terminated the portion of spare parts, etc. and claims for damages arising therefrom to the contract performance guarantee company, it shall not be excluded from additional goods payment on the ground that the Plaintiff was liable to compensate for damages reflecting the inflation in price at the original contract price, not from the contract price for spare parts, etc., and that the Plaintiff was liable to compensate for the contract performance guarantee company. However, even if the Urban Railroad Corporation partially received the contract performance guarantee insurance, it cannot be deemed that the obligation to compensate for damages arising from the contract rescinded with the insurer as a result of the exercise of rights pursuant to the insurance contract with the insurer. The insurance amount claimed by the Urban Railroad Corporation is a contract performance guarantee bond, which has the nature as liquidated damages, and thus, it is difficult to evaluate that it was claimed for the increase in insurance proceeds by reflecting

4) Determination of the price for additional goods by contract price adjustment;

A) Comprehensively taking account of the overall purport of the pleadings by ○○○○○○○○○○○○ of the first instance trial, where the Defendant excluded the parts, such as reserve products claiming the cancellation of a contract, the index adjustment rate by each of the base dates and devices is as is, but the increased amount of goods is KRW 1,635,67,000 as of the base date of the second adjustment, and the total amount of KRW 1,565,378,000 as of the base date of the second adjustment. Accordingly, the Defendant’s application for contract price adjustment is the total amount of KRW 3,201,05,000 (i.e., the principal amount of additional goods to be paid to the Plaintiff or an independent party participant upon the application for contract price adjustment (=1,635,67,000,0000 + the base date of the second adjustment + KRW 1,565,378,000).

B) Meanwhile, the Plaintiff and the independent party intervenor sought damages for delay from December 4, 2012, which is the day following the date on which the supply of 2 to 7 parts of the total price of the additional goods was completed. However, according to each of the evidence Nos. 2 and 3, 30% of the price shall be paid in advance, and 50% of the price shall be paid in advance when the internal trial operation was completed after the assembly as part payments was completed, and the remaining 20% of the price shall be paid in the vehicle base after the main performance test and the trial are completed and the vehicle performance is not found. The remaining 20% of the price shall be paid in advance. The time of delivery prior to each formation, the time of issuance of the performance certificate, the time of the completion of the acceptance inspection, the time of the takeover transfer, the period of the takeover transfer and the payment period of the Defendant’s intermediate payment and the payment period are as shown in the aforementioned Table No. 2, and in the case of reflecting it, each of the previous unit portion, the intermediate payment payment, the remainder payment payment, and the remainder payment period as follows.

(1) 2 and 3 parts were transferred to the vehicle owner after completion of the acquisition inspection on or before December 3, 2012. As to the increased amount of KRW 1,067,018,33 (=3,201,05,000 x less than KRW 2/6,00; hereinafter the same shall apply), damages for delay from December 4, 2012, as sought by the Plaintiff and the Intervenor of independent parties, shall be recognized (i.e., the intermediate payment and the remaining payment date for each part are different, so the increased portion of the contract amount shall be individually specified, but there is no evidence to acknowledge the increased portion of the goods price for each part of the reorganization, and thus, the adjusted amount of KRW 3,201,05,00 for each total increase shall be divided according to the ratio of partial payment of the price for each reorganization, including the difference between the calculated portion of KRW 7 percent).

(2) Of the total contract amount for the portion set forth in subparagraphs 4 through 7, advance payments are already made to the Committee on January 17, 2012 and around March 7, 2012, and the intermediate payments for the portion set forth in subparagraphs 4 through 6 are recognized to have been made to the Committee by November 22, 2012. As such, 640,211,000 won (=3,201,05,000 x 4/6 x 0.3 x 0.0) equivalent to the above advance payments 80,263,750 won (=3,201,05,000 x 3/6 x 3/6 x 00 x 3/6 x 0 x 5 x 3/6 0 x 5 x 6.21,000 x 21,000 x 21,005).

(3) In the case of the composition 4, 5, and 6, since it is recognized that the Urban Railroad Corporation paid the remaining amount to the Guro on the date of the provisional transfer after completion of each acquisition inspection, it is reasonable to deem that the Defendant’s obligation to pay the remainder has occurred only when the remaining amount of the remaining increase in the remaining amount of the previous share of each reorganization is calculated on the date of each remaining payment date. Therefore, the damages for delay shall be recognized respectively from the date

3,06,701,833 won calculated on the 3rd day of the 3rd day of the 3rd day of the 3rd day in the main sentence x 1/6 x 3,201,05,00 won x 1/6 x 3,06,701,83 won x 3,201,83 won x 3,05,000 won on December 24, 2012, 2012 x 3,201,05,000 won x 1/6 x 1/6 x 3,000 on the 3rd day of the 203rd day of the 3rd day of the 3rd day of the 3rd day of the 3rd day of the 3rd day of the 20th day of the 3rd day of the 20th day of the 13rd day of the 2013rd day of the 2013rd day of the 20.

(4) From December 3, 2012, the window completed the delivery on 7th 7th 3rd 2012. The Urban Railroad Corporation refused to pay the remaining amount on the ground that the intermediate payment for the portion organized on 7 December 26, 2013 was paid to the window, but the spare parts were not supplied. Accordingly, the acquisition inspection period was extended on April 15, 2014. On April 29, 2014, the acquisition inspection was completed on 36, 76, 75, 306, 30, 167, 30, 167, 30, 167, 167, 30, 167, 167, 30, 167, 306, 167, 167, 207, 167, 167, 207, 167, 207, 167, 208.5.

5) Sub-committee

Therefore, according to the instant application for conciliation, the Defendant is obligated to pay 3,201,05,000 won and 2,507,493,083 won among them (=1,067,018,33 won + 1,440,474,750 won + 1,474,750 won, as requested by the Plaintiff and the Intervenor by independent parties, for 106,701,833 won from December 4, 2012, as for 26,754,583 won from December 27, 2012, from 106,701,701,83 won from 106,701,83 won from 203, from 106,701,83 won from 106,701,83 won from 203, from 2013 to 30,71,73330, etc. of the Commercial Act.

3. Judgment as to the claimant for the claim for additional amount of goods

(a) Facts of recognition;

1) The first assignment of claims

A) The Commission received a loan from an independent party intervenor from February 23, 2006 to March 30, 2012 (hereinafter collectively referred to as “instant loan”) as shown in Table 4 below.

The remaining loan amount of KRW 1 billion on February 15, 2013, after the change in the terms and conditions of the loan date of the title of loan in the table Nos. 4 in the main sentence, 1.0 billion won on February 23, 2006, general 1.4 billion on February 15, 2013, the total amount of KRW 2.3 billion on August 30, 2012, KRW 3 billion on August 30, 2012, KRW 5 billion on March 30, 2012, KRW 4.0 billion on April 215, 2013, KRW 6 billion on March 30, 2012, KRW 12.9 billion on March 28, 2013.

B) On March 30, 2012, prior to the filing of an application for the contract price adjustment with an urban railway corporation due to price fluctuation, the Committee entered into a contract on the assignment of goods payment claims under the second franchise purchase contract against an urban railway corporation with an independent party intervenor in order to secure all obligations that are currently and future against an independent party intervenor due to the transaction of “commercial loan for business operation, and payment guarantee in Korean won,” and entered into a contract on the assignment of the goods payment claims under the second franchise purchase contract against an independent party intervenor (hereinafter “first assignment of claims”). At the time of the first assignment of claims, the assignment contract, which was made up at the time of the first assignment of claims, was specified by the method of attaching “purchase contract” by the apparatus of the second franchise purchase contract.

C) On April 3, 2012, when applying for approval for the assignment of claims to an urban railway corporation, the Lour stated that “The first assignment of claims is attached to the application form, and the first assignment of claims after the delivery of goods to the commercial contract is approved by the transfer to an independent party intervenor.”

D) On April 3, 2012, the Urban Railroad Corporation sent a written reply to the effect that it approves the assignment of claims by the Committee, stating the date of response and the term "approval of the assignment of claims (the partial transfer of the price of delivered goods)".

2) Second assignment of claims

A) On March 29, 2013, the Committee transferred an amount equivalent to one billion won out of the goods price claims increased by the contract price adjustment to an independent party intervenor. At the time, the Committee and an independent party intervenor agreed that “at the time when the transfer takes effect, the following obligations against the independent party intervenor shall be deemed to have been fully repaid (or shall be exempted from obligations within the extent of the amount of the assigned claim)” (hereinafter referred to as “the second assignment of claims”).

B) On March 29, 2013, the Street notified the Urban Railroad Corporation of the transfer of KRW 1 billion out of the additional commodity price bonds to the Urban Railroad Corporation by means of a document verifying mail, and the said notice of transfer reached the Urban Railroad Corporation.

C) On April 23, 2014, an urban railway corporation sent to an independent party intervenor a reply to the effect that “the urban railway corporation notified that it would not accept the contract price adjustment, and thereafter there is no further application by the Committee for the contract price adjustment, and the remainder of the claim for the purchase price of goods under the second preceding loan contract except for the additional goods payment claim following the application for contract price adjustment is transferred to the independent party intervenor.”

3) Commencement of rehabilitation procedures for the Commission and report on rehabilitation security rights of independent party intervenors

A) On May 14, 2014, when the Committee was faced with financial difficulties due to a shortage of operating funds, the Committee applied for commencement of rehabilitation procedures on May 14, 2014 as Seoul Central District Court 2014 Gohap10043. The rehabilitation court decided commencement of rehabilitation procedures on June 18, 2014, and the Nonparty, the representative director of the Committee, was legally considered as the custodian.

B) On July 2, 2014, an independent party intervenor reported to the rehabilitation court the principal of the instant loan claim amounting to KRW 3,488,650,709, interest claim accrued prior to the commencement of rehabilitation procedures (hereinafter “interest prior to commencement”) totaling KRW 4,193,658,988 (= KRW 3,488,650,709 + + KRW 705,08,279 + interest accrued after the commencement of rehabilitation procedures (hereinafter “interest prior to commencement”) and damages for delay arising after the commencement of rehabilitation procedures (hereinafter “interest prior to the commencement”) as rehabilitation claims. Accordingly, the said rehabilitation claim became final and conclusive because the wind committee’s administrator did not raise any objection within the inspection period.

C) On October 8, 2014, an independent party intervenor filed a subsequent report on the instant loan claim on rehabilitation security right based on the secondary purchase contract, on the grounds that the claim for goods price based on the instant loan was provided as security for transfer. At the time, an independent party intervenor entered only the transfer security right based on the first assignment of claims as security right.

D) Meanwhile, the independent party intervenor filed an application for intervention of the independent party with the court of first instance, separate from the subsequent report on rehabilitation security rights on December 5, 2014.

E) On December 16, 2014, a custodian of the Street filed an objection to the rehabilitation security right reported by an independent party intervenor after subsequent completion on the special inspection date held on December 16, 2014. An independent party intervenor filed an application for the final inspection judgment against the custodian on January 16, 2015, which is within one month from the date of the special inspection date, for the confirmation of the rehabilitation security right reported subsequent completion to the Seoul Central District Court 2015da164, and the said final inspection judgment is still pending in the rehabilitation court.

4) Authorization and termination of a rehabilitation plan

A) On October 31, 2014, a trustee of the Commission submitted a rehabilitation plan to the rehabilitation court. On December 15, 2014, the revised rehabilitation plan was passed at the meeting of interested persons held on December 16, 2014 by submitting the third amendment of the rehabilitation plan, and on the same day, the rehabilitation court decided to authorize the rehabilitation plan. The finalized rehabilitation plan pays the principal and the total interest amount to the rehabilitation secured creditors before the commencement of the rehabilitation plan, and pays the interest at the rate of 3% per annum to the creditors after the commencement of the rehabilitation plan, by applying the interest rate of 3% per annum to the rehabilitation secured creditors, the security rights of the rehabilitation secured creditors continue to exist, the security rights of the rehabilitation secured creditors not recognized as the rehabilitation security rights are extinguished, and the rehabilitation security rights not yet determined as the result of the final inspection judgment, etc. which became final and conclusive as a rehabilitation security right. The contents related to this case in the rehabilitation plan are as follows (the "debtor" refers to the Committee as follows).

본문내 포함된 표 제3장 회생담보권 및 회생채권에 대한 권리변경과 변제방법 제2절 회생담보권의 권리변경과 변제방법 1. 회생담보권 대여채무 가. 채무자가 시인한 회생담보권 대여채무의 내역은 다음과 같습니다. 신고번호 채권자 시인된 채권액 변동 변동 후 시인된 총 채권액 원금 개시전이자 개시후이자 계 담보권1 에프케이1409 유동화전문유한회사 10,372,377,110 - - 10,372,377,110 - 10,372,377,110 나. 권리변경 및 변제 방법 (1) 원금 및 개시전이자 시인된 원금 및 개시 전 이자의 전액을 현금변제 하되, 변제대상금액은 제1차년도(2015년)에 90%를 변제하고, 제4차년도(2018년)에 10%를 변제합니다. (2) 개시 후 이자 개시후이자는 연 3%의 이자율을 적용하여 준비년도(2014년)부터 제4차년도(2018년)까지의 변제기일에 변제합니다. 2. 담보권의 존속 및 해지 가. 담보권의 존속 회생담보권자의 담보권은 본 회생계획안에 의하여 권리 변경된 회생담보권을 피담보채권으로 하는 담보권으로서 종전의 순위에 따라 존속합니다. 그러나 회생담보권으로 인정되지 아니한 담보권과 담보 목적의 지상권 등은 소멸합니다. 제3절 회생채권의 권리변경과 변제방법 1. 회생채권의 대여채무 가. 채무자가 시인한 회생채권 대여채무의 내역은 다음과 같습니다. 신고번호 채권자 시인된 채권액 변동 변동 후 시인된 총 채권액 원금 개시전이자 개시후이자 계 채권6 독립당사자참가인 3,488,650,709 705,008,279 - 4,193,658,988 - 4,014,572,971 나. 권리변경 및 변제 방법 (1) 원금 및 개시전이자 시인된 원금 및 개시전이자의 66%를 출자전환하고 34%를 현금변제 하되, 변제대상채무에 대하여 제5차년도(2019년)부터 제9차년도(2023년)까지 매년 15%씩 균등분할 변제하고, 제10차년도(2024년)에 25%를 변제합니다. 출자전환 대상 채권액은 본 회생계획안 제10장 제4절에 의하여 회생회사가 신규로 발행하는 주식의 효력발생일에 당해 회생채권의 변제에 갈음합니다. (2) 개시후이자 개시 후 이자는 전액 면제합니다. 다. 권리변경 후 채무자가 변제할 회생채권 대여채무의 내역은 다음과 같습니다. 신고번호 채권자 변동 후 시인된 총 채권액 출자전환 권리변경 후 변제할 채권액 원금 개시전이자 개시후이자 계 채권6 독립당사자참가인 4,193,658,988 2,767,814,932 1,186,141,241 239,702,815 - 1,425,844,056 제4절 미확정 회생담보권 및 회생채권의 처리 1. 미확정 회생담보권, 회생채권의 권리변경과 변제방법 가. 미확정채권이 조사확정재판이나 확정소송에 의하여 회생담보권 또는 회생채권으로 확정될 경우, 그 권리의 성질 및 내용에 비추어 가장 유사한 회생담보권 또는 회생채권의 권리변경 및 변제방법에 따라 변제합니다. 나. 위 가. 항에 따라 권리변경 및 변제 방법을 적용하는 것에 관하여 다툼이 있을 경우에는 관리인의 신청에 의하여 회생법원이 이를 결정합니다.

B) On December 30, 2014, an independent party intervenor was treated as an independent party intervenor, and an independent party intervenor was issued shares 30,754 shares of the Commission according to the rehabilitation plan. On December 30, 2014, an independent party intervenor prepared a certificate of non-issuance of share certificates for the said shares.

C) On October 23, 2015, the rehabilitation court rendered a decision to terminate the rehabilitation procedure against the Commission, which was pending in the first instance trial of this case.

[Ground of recognition] Facts without dispute, Gap's evidence 17, 20, 22, Byung's evidence 1 to 9, 11, the purport of the whole pleadings

B. The parties' assertion

1) The assertion by an independent party intervenor

An independent party intervenor acquired a claim for the price of goods under the secondary franchise purchase contract from the window by the first assignment of claims, or received it as a security for transfer, and the defendant gave no objection thereto, and accordingly, the claim for the price of goods increased by the contract amount adjustment was also included in the object of the assignment of claims or the object of the security for the assignment of claims. Since the independent party intervenor has not been paid a total of KRW 4,193,658,98 from the plaintiff until now, the defendant is obliged to pay the additional goods price of KRW 3,420,232,00 as a result of the contract amount adjustment and damages for delay to the intervenor who is not the plaintiff.

Even if the increased portion of the price of goods is not transferred to an independent party intervenor according to the first assignment of claims, the intervenor of the independent party became finally and finally entitled to one billion won out of the additional claim according to the second assignment of claims, and thus, the defendant is obligated to pay to the independent party intervenor one billion won and damages for delay.

2) The plaintiff's assertion

A) The Commission did not transfer to an independent party intervenor the claim for the price of goods to be additionally paid by the Urban Railroad Corporation according to the contract price adjustment due to price fluctuation, and the said additional claim for the price of goods is excluded from the subject of the assignment of the first assignment of claims or the collateral of the assignment of claims.

B) An independent party intervenor recovered the entire amount of unpaid claims by participating in the rehabilitation procedure against the Commission and receiving the issuance of stocks.

C) Since the security interest of an independent party intervenor has ceased to exist by the authorization of the rehabilitation plan, the claims of the independent party intervenor entitled to the security interest are unjustifiable.

C. Determination as to claims based on the first assignment of claims

1) Legal nature of the first assignment of claims

According to the facts of recognition, it is reasonable to view that the first assignment of credit is a contract to provide the goods price claim to be paid by the Commission from the Urban Railroad Corporation in accordance with the second lease contract with the claim secured by the corporate operating loan and the transaction of payment guarantee in Korean won, which is the loan in this case, as the secured claim. It is reasonable to view that the first assignment of credit is a contract to provide the goods price claim to be paid by the Urban Railroad Corporation in accordance with the second lease purchase contract, and the consent of the third debtor with a fixed date is also obtained by accepting the document with the corresponding date (see Supreme Court Decision 9Da834 delivered on December 28,

2) Whether the additional claim for the price of goods is included in the secured object of the security right for security

A) Even if a future claim can be the object of the assignment of claim, and if it is possible to recognize the identity of the claim by distinguishing the claim subject to the transfer from other claim under social norms, such claim shall be deemed specified. Even if the amount of claim subject to the transfer at the time of the transfer of claim is not determined, if a standard exists to determine the amount of claim by the due date, the transfer of the claim shall be deemed valid (see Supreme Court Decision 95Da21624, Jul. 25, 1997, etc.).

B) According to the facts of recognition, the Commission and the independent party intervenor entered the goods price claim under the second preceding preceding preceding preceding preceding preceding purchase contract as the goods subject to the second preceding preceding preceding preceding preceding purchase contract and did not limit any extent otherwise. Although at the time of the first assignment of claims, as seen earlier, although the second preceding assignment of claims did not yet apply for the contract price adjustment, it seems that there was a standard for the increase of the goods price claim under the contract price adjustment under the contract terms, special contract terms, general contract terms and local contract terms, etc. included in the second preceding preceding purchase contract and the contents of the contract, and the goods price claim increased as a result of the contract price adjustment also maintains the nature of the goods price claim under the second preceding preceding preceding purchase contract as they are maintained, and thus, the goods price claim is identical to that specified as the goods subject to the first preceding preceding purchase contract. In light of this, it is reasonable to deem that the additional goods price claim to be paid according to the contract price adjustment due to price fluctuation is included in the object of the security of the

C) Also, since the transfer of claims is distinct from the acceptance of the status of a party, even if an independent party intervenor is not in the position of a party and there is no title to apply for contract amount adjustment against an urban railway corporation, such circumstance does not affect the judgment on the object of the transfer of claims security.

D) Meanwhile, in addition to the first assignment of claims, the Commission transferred to an independent party intervenor the part of KRW 1 billion out of the goods price claims increased by the contract price adjustment through the second assignment of claims. However, as seen thereafter, the second assignment of claims falls under the assignment of claims instead of the security purpose, and its legal nature is distinguishable from the first assignment of claims. As such, the determination on the scope of the first assignment of claims cannot change on the grounds of the fact that the nature is different from that of the second assignment of claims.

E) In addition, even though an urban railway corporation has used the expression “part transfer” with the approval of the first assignment of claims, as seen earlier, it is difficult to interpret that the urban railway corporation has already paid part of the advance payment to the Committee at the time of the first assignment of claims, and it is merely deemed that it approves only the transfer of the remainder of the goods price claim except for this, and it is difficult to interpret it as an intention to exclude the additional goods price claim to be calculated upon an application for contract adjustment

3) Whether an independent party intervenor’s right to transfer security for claims is effective in the rehabilitation procedure

A) The term “mortgage” means a claim on the debtor’s property arising from any cause before the commencement of rehabilitation procedures (Article 118 subparag. 1 of the Debtor Rehabilitation Act), and “mortgage security right” refers to the scope of claims secured by mortgage, transfer security right, etc. existing on the debtor’s property at the time rehabilitation procedures commence (Article 141(1) of the Debtor Rehabilitation Act). Upon commencement of rehabilitation procedures, any individual exercise of the right by the rehabilitation creditor and the rehabilitation secured creditor is prohibited, and the exercise of the right by the rehabilitation secured creditor already underway is suspended (Articles 58(1)2 and 58(2)2 of the Debtor Rehabilitation Act). A rehabilitation secured creditor may report his/her rehabilitation security right to the rehabilitation court and receive reimbursement, as prescribed by the rehabilitation procedures, by participating in the rehabilitation procedures (Article 141(2) and (3) and 131 of the Debtor Rehabilitation Act), even if a rehabilitation secured creditor fails to file a lawful report, or is raised during the course of claims inspection, and in cases where rehabilitation security rights are not established in the final judgment, etc.

B) According to the facts of recognition, since an independent party intervenor held the instant loan claims against the Commission, this constitutes a rehabilitation security right as a property claim against the Commission, which was incurred prior to the commencement of rehabilitation procedures, and the right to transfer security by the first assignment of claims against the Commission was established at the time the rehabilitation procedures commence, and in light of the aforementioned legal principles, the Intervenor’s right to transfer security is a rehabilitation security right, which is subject to the rehabilitation procedure for the Commission and the rehabilitation plan. In addition, the Intervenor’s right to transfer security by the first assignment of claims filed a report on the rehabilitation security right by the subsequent completion of the rehabilitation security right, and the independent party intervenor filed an objection from the trustee of the Commission, and complied with the period of filing a lawsuit within one month from the special inspection date (Article 170(2) of the Debtor Rehabilitation Act). However, when the rehabilitation plan is approved, all the security rights of the obligor’s property are extinguished except for the right recognized under the rehabilitation plan or the Debtor Rehabilitation Act (Article 251 of the Debtor Rehabilitation Act).

4) Where rehabilitation procedures commence against a person who has created a security right to an assignment of claims, the right holder to demand performance of the secured claim

A) Issues

As seen earlier, the Commission filed the instant lawsuit immediately before the commencement of rehabilitation procedures, and after the commencement of rehabilitation procedures, the administrator took over the proceedings of the Commission, and the independent party intervenor filed an application for intervention in the instant lawsuit separate from the rehabilitation procedures for the Commission. In the relevant final inspection judgment, the existence of the rehabilitation security right of the independent party intervenor was not determined in the final inspection judgment, while the rehabilitation procedures for the Commission are completed, and the administrator’s litigation procedures were taken over again by the Commission and the Plaintiff. In this context, when the rehabilitation procedures commence for the transferor of the transferred security right, the question is whether the third party obligor is the transferor or the transferee should be the mortgagee.

B) Criteria for determination

The Debtor Rehabilitation Act, as a special law under the Civil Real Estate Act and the Civil Procedure Act, is governed by the said special law. However, on the other hand, the Debtor Rehabilitation Act does not intend to create a new real right (the rehabilitation security right refers to rehabilitation claim secured by non-exclusive security right, but refers to rehabilitation claim secured by non-exclusive security right). Unless otherwise provided in the Debtor Rehabilitation Act or it is contrary to the nature of the rehabilitation procedure, the interpretation of the parties’ real rights

C) Determination

(1) The term “transfer for security” means a non-exclusive security right in which one of the parties concerned transfers the title of a right to the other party for the purpose of security and the other party maintains the collateral by holding the title of the right, and even if it is possible for the mortgagee to use and profit from the mortgaged object as a right holder in the internal relationship between the person who created the security and the mortgagee, the mortgagee exercises his/her right as a title holder. Therefore, even if the transfer of the right was made as a security for another obligation and the obligation was repaid, it is merely an issue between the transferor and the transferee of the claim, and the obligor of the transfer claim should pay the assignee the transferred obligation regardless of the extinguishment of the obligation between the transferor and the transferee, so even if the secured obligation has become extinct due to the repayment of the obligation, the obligor of the transfer claim cannot refuse the claim of the transferee for the transfer of the claim for this reason (see Supreme Court Decision 9Da23093, Nov. 26, 199)

(2) Meanwhile, the “debtor” in this context refers to a debtor in the rehabilitation procedure, unless there is any special reference. Accordingly, when rehabilitation procedures commence with respect to the debtor’s obligation and the right to manage and dispose of the property, when the debtor’s obligation and the right to manage and dispose of the property are exclusively vested in the administrator (Article 56 of the Debtor Rehabilitation Act). Thus, in the case of ordinary security rights, such as a lien, pledge, mortgage, etc. held by the debtor in the name of the right that is the object of security, it is possible to file a claim, such as a lawsuit, if necessary, with respect to the property for which the debtor has secured

However, in the case of the transfer of security, there is room to regard the secured claim as the property of the debtor in the internal relationship between the mortgagee and the debtor, but in the external relationship, it is reasonable to see that the creditor holding the secured claim is the mortgagee. As such, the custodian cannot be viewed as having a right to demand the performance against the third debtor on the ground of Article 56 of the Debtor Rehabilitation Act. In particular, the right to collateral security is publicly announced by the creditor by holding the title of the right. If it is possible for the custodian to demand the performance directly against the third debtor and collect the claim, the right to collateral security would result in an unfair result of the extinction of the right to collateral security (if the custodian requests the performance directly against the third debtor as a measure to resolve these problems, it may be suggested that the collection would be deferred or deposited to the third debtor, but it is difficult to view that the manager can directly demand the performance).

(3) When rehabilitation procedures commence, individual exercise of rights by rehabilitation creditors and rehabilitation secured creditors is prohibited (Article 58(1)2 of the Debtor Rehabilitation Act), and the act of exercising the right to transfer security by the rehabilitation secured creditor is also prohibited (see, e.g., Supreme Court Decision 2009Da90146, May 26, 2011). However, in the case of transfer of security right, it is necessary for a mortgagee to claim performance against a third party debtor for the interruption of extinctive prescription period of the secured claim or other preservation of the secured claim. Therefore, it cannot be readily concluded that the mortgagee’s claim for performance is an act of exercising the security right that is uniformly prohibited from

(4) The difference between the case where the custodian and the case where it is deemed that the garnishee is entitled to demand direct performance against the garnishee of the transferred security and the case where the mortgagee is entitled to demand performance is as follows.

① In a case where the right to transfer security has become final and conclusive as a rehabilitation security right, and the judgment has become final and conclusive upon receiving a favorable judgment by directly demanding the performance of the obligation against the third party debtor while the rehabilitation procedure is in progress, the assignment of the right to collateral was conducted before the above final and conclusive judgment, and the mortgagee cannot be deemed a successor after the final and conclusive judgment by the custodian, and thus, the mortgagee cannot be deemed a successor after the final and conclusive judgment by the custodian. There is no room for the foregoing problem

② In the event that a right to transfer security is confirmed as a rehabilitation security right, and the custodian directly claims a third-party debtor during the rehabilitation procedure but the rehabilitation procedure is terminated before the judgment became final and conclusive, the lawsuit that the custodian performed is required to take over by the debtor, but the debtor, who is in the position of the transferor of the assignment security, claims for the performance against the third-party debtor, is unreasonable. If the mortgagee directly claims the performance against the third-party debtor, there is

③ In the event that a right to transfer security does not become a rehabilitation security right, there is no unreasonable problem even if a custodian directly claims a third party debtor while the rehabilitation procedure is in progress, but the same applies to cases where a mortgagee directly claims a third party debtor for the performance of the obligation against him/her. In other words, in cases where the right to transfer security for a claim ceases to exist in accordance with the rehabilitation plan, the transfer of the right to transfer security for the establishment of such right to transfer security has ceased to be effective and thus, the claim transferred to the transferee is again transferred to the obligor, who is the assignee of the claim. Such transfer of the right is not subject to the provisions of the Civil Act regarding the requisite for setting up against the designated transfer security right as prescribed by law (see, e.g., Supreme Court Decision 2015Da203790, May 28, 2015). Therefore, the custodian is still in the rehabilitation procedure, after the rehabilitation procedure is in progress, the debtor is

(5) In light of such circumstances, even in cases where rehabilitation procedures commence against the debtor who is a security holder in the security transfer for claims, it is reasonable to deem that the right to claim performance against the third debtor is against the debtor, not the debtor, but the secured creditor, even if the security right is denied as an act subject to denial (Articles 100(1), 103, and 104 of the Debtor Rehabilitation Act), or that the third debtor is against the secured creditor, not the debtor, because the non-existence of the security right is extinguished due to the confirmation of non-existence of the rehabilitation security right. However, since the exercise of the security right is prohibited during the rehabilitation procedures, even if the secured creditor claims the performance, the third debtor cannot be actually collected, and the third debtor may escape from his/her obligation by depositing the repayment amount, and if the debtor fails to perform his/her obligation under the rehabilitation plan after the completion of the rehabilitation procedures, the security right of

5) Relationship with the final inspection judgment

In addition to the lawsuit brought by an independent party intervenor, the scope of the two trials may be at issue, as the judgment in claim for confirmation of rehabilitation security rights by the application of the independent party intervenor is pending (Article 170(3) of the Debtor Rehabilitation Act). However, the above final judgment is a judgment determining the existence and content of rehabilitation security rights (Article 170(3) of the Debtor Rehabilitation Act), so as to determine whether a rehabilitation claim by an independent party as of the time of commencement of rehabilitation procedures satisfies the requirements for rehabilitation security rights, i.e., whether a rehabilitation claim by an independent party exists and amount of the transferred security right, i.e., whether a rehabilitation claim by the transfer security right is established as a preserved claim, a third party’s establishment of a security right, and a scope of secured claims within the limit of the value of the secured object, and thus, the question of whether the right holder of additional goods payment claims due to the adjustment of the contract amount in this case is between the plaintiff and the defendant shall be determined based on the result of the final final final final final final judgment. In this respect, even if the judgment in claim is not finalized.

6) Judgment on the Plaintiff’s assertion

A) The Plaintiff asserted that an independent party intervenor recovered unpaid claims by participating in the rehabilitation procedure against the Commission, but since the part of the rehabilitation claim among the rights reported by an independent party intervenor becomes final and conclusive without objection, it is limited to the issuance of shares according to the method of change of rights to rehabilitation claims and repayment. If the rights of an independent party intervenor are confirmed as a rehabilitation security right in the future, it shall be based on the method of change of rights to rehabilitation security rights and repayment other than a rehabilitation claim. According to the facts of recognition, in this case, cash reimbursement should be made instead of the method of issuing shares according to the rehabilitation plan. Accordingly, it cannot be deemed that the independent party intervenor collected unpaid claims on the sole basis of the above circumstances. Therefore, this part of the Plaintiff’s assertion is without merit.

B) In addition, the Plaintiff asserts that the Plaintiff’s additional claim for the purchase of goods by an independent party intervenor is not included in the secured object of the security right for security, or that the security right was extinguished by the approval of the rehabilitation plan. As seen earlier, the Plaintiff’s assertion cannot

7) Sub-determination

Therefore, the claimant for the claim for the price of goods added by the application for the contract amount adjustment by the Commission shall be an independent party intervenor who has received the assignment of the right for the purpose of security (However, since the existence of the right for security in relation to the right for security by an independent party intervenor is in a flexible state, even if the independent party intervenor's collection by means of compulsory execution against the defendant is not null and void, there is a possibility that the plaintiff shall be liable for damages according to the result of the final judgment in claim allowance proceedings. Furthermore, the defendant may escape from the obligation by depositing the intervenor as the independent party intervenor as the beneficiary.In the event that the absence of the rehabilitation security right of the independent party intervenor becomes final and conclusive as a result of the final judgment in claim allowance proceedings, the plaintiff is subject to the transfer of the additional claim for the price of goods under the provisions of law, and

D. Determination on the second assignment of claims

1) Since an independent party intervenor has asserted based on the second assignment of claims in preliminaryly, the independent party intervenor also examines the second assignment of claims below.

2) According to the facts of recognition, the Commission and the independent party intervenor agreed to transfer the portion of KRW 1 billion among the additional goods payment claims against the urban railway corporations, which are acquired by the Commission due to the contract price adjustment during the second assignment of claims, to the independent party intervenor, and at the same time, to dispose of the transfer of the additional goods payment claims against the urban railway corporations, and to dispose of the payment of the loan of this case to the corresponding amount. In light of the purport of the above agreement, it is reasonable to view that the second assignment of claims is either a payment for the urban railway corporations or a payment of the additional goods payment claim of KRW 1 billion in lieu of the repayment of claims.

3) Since the portion of KRW 1 billion out of the price claims for additional goods according to the second assignment of claims is already divided from the assets of the Commission before the rehabilitation procedures commence, it cannot be deemed that the effect of the second assignment of claims is extinguished due to authorization of the rehabilitation plan on the ground that an independent party intervenor did not report rehabilitation security rights with respect to the second assignment of claims. Meanwhile, the independent party intervenor reported rehabilitation claims on the premise that the amount of KRW 1 billion has not been repaid in the rehabilitation procedures against the Commission, notwithstanding the second assignment of claims, but in the rehabilitation procedures, it is ordinarily reasonable to report rehabilitation claims on the premise that the creditors would suffer disadvantage by failing to report rehabilitation claims. In light of the common sense, the effect of the second assignment of claims is not denied merely because an independent party intervenor reported rehabilitation claims as above.

4) Therefore, by the second assignment of claims, the Defendant is obliged to pay an independent party intervenor KRW 1 billion out of the additional goods payment claims due to the contract price adjustment and damages for delay thereof. However, since the above part is within the amount acknowledged in the first assignment of claims as above, the above part is within the scope of the amount acknowledged in the first assignment of claims, the payment portion pursuant to the second assignment of claims in this case should not be specifically distinguishable.

4. Determination as to the amount of award and the return of provisional payment

(a) The amount of award to an independent party intervenor;

Therefore, as the defendant seeks from December 4, 2012 to 106,701,70,493,083 won among the 3,201,05,00 won and 2,507,493,083 won to the independent party intervenors, the defendant has no obligation to pay 25% annual interest rate from December 25, 2012 to 26,754,583 won, from December 27, 2012; 106,701,83 won from February 8, 2013 to 106,701,833 won; 25% interest rate from March 30, 2013 to 25% interest rate of 25% from the date of enforcement of the former Special Cases Concerning Civil Procedure Act; 30% interest rate of 25% interest rate of 25% interest rate of 15% interest rate per annum from the date of enforcement of the aforesaid Special Cases Concerning Civil Procedure.

B. Scope of return of provisional payments

As seen earlier, the part against the defendant in the judgment of the court of first instance should be modified to the purport of revocation in full. As such, the sentence of provisional execution of the court of first instance is invalidated by this judgment. In full view of the facts without any dispute and the purport of the entire pleadings, the Plaintiff is obligated to pay damages for delay calculated at the rate of 3,974,280,793 won per annum as stipulated in the Civil Act from December 2, 2016 to July 26, 2017, which is the date the provisional execution of the judgment of first instance was declared, as the Plaintiff received from the Defendant on December 2, 2016, in accordance with the sentence of provisional execution of the judgment of first instance. Therefore, the Plaintiff is obligated to pay damages for delay calculated at the rate of 15% per annum as stipulated in the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings, which is the date the provisional payment was received by the Defendant from December 2, 2016 to the date of complete

5. Conclusion

Thus, the claims of the independent party intervenor shall be accepted within the scope of the above recognition, and the plaintiff's main claims and the remaining claims of the independent party intervenor shall be dismissed as they are without merit. Since the judgment of the court of first instance is unfair differently from this conclusion, the appeal of the defendant and the independent party intervenor shall be partially accepted, and the judgment of the court of first instance shall be modified, and the defendant's application for return of provisional payment shall

Judge Lee Jin-hun (Presiding Judge)