Plaintiff Mutual Aid Association (Law Firm Hank, Attorney Park Sang-hoon et al., Counsel for plaintiff-appellee)

Defendant Mutual Aid Association (Attorney Kim Hyun-soo, Counsel for defendant-appellee)

October 10, 2001

Seoul District Court Decision 98Na7733 delivered on April 7, 1999

Supreme Court Decision 99Da51258 delivered on July 6, 2000

1. The plaintiff's claim corresponding to the cancellation part of the judgment of the court of first instance is dismissed.

2. A. The plaintiff shall pay to the defendant 582,282,808 won with 5% interest per annum from April 14, 1999 to the full payment.

B. The defendant's remaining provisional payment claim is dismissed.

3. The total costs of litigation and the costs of application for the return of provisional payments shall be borne by all of the plaintiff.

1. Purport of claim

The defendant shall pay to the plaintiff 466,030,534 won with 6% interest per annum from July 1, 1996 to the service date of a copy of the complaint of this case, and 25% interest per annum from the next day to the full payment date.

2. Purport of appeal

The text of paragraph (1) is as follows.

3. Purport of request for the return of provisional payments;

The plaintiff shall pay to the defendant 582,282,808 won with the return of the provisional payment and 6% interest per annum from April 14, 1999 to the delivery date of the application of this case, and 25% interest per annum from the next day to the full payment date.

1. Facts recognized;

Each entry of Gap evidence 1 through 6, Gap evidence 8, Eul evidence 2, Eul evidence 4-1, Eul evidence 5-1, and Eul evidence 5-2 can be acknowledged as follows in full view of the whole purport of the pleadings:

A. The defendant union is a special law established for its business purpose to guarantee the performance of the obligation to pay the contract deposit, advance payment deposit, etc., which is to be borne by the members of the association with the original construction business for the contracted construction business. The plaintiff union is established separately from the members of the defendant union under the former Specialized Construction Mutual Aid Association Act (repealed by the Framework Act on the Construction Industry on July 1, 1997; hereinafter the "Act"), among the members of the defendant union under the former Specialized Construction Mutual Aid Association Act (repealed by the enforcement of the above Framework Act on the Construction Industry). The plaintiff union started its business on July 1, 1996. According to Article 8-2 of the Act, the plaintiff union was transferred the shares of the plaintiff union to the defendant union and succeeded to the rights and obligations that the defendant union has in relation with the person who becomes a member of the plaintiff union.

B. On April 4, 1995, the non-party 1 corporation (hereinafter referred to as the "non-party 1") entered into an agreement with the defendant to guarantee a limited transaction with the effect that the non-party 1 would receive various guarantees, including advance payment guarantee from the defendant, and the non-party 1 would pay the amount guaranteed by the defendant to the guarantee creditor as above. In this case, the non-party 2 corporation, the non-party 3 corporation, and the non-party 4 corporation (hereinafter referred to as the "three companies") jointly and severally guaranteed the indemnity liability owed by the non-party 1 to the defendant under the above agreement.

C. Nonparty 6 and Nonparty 7 conspired with Nonparty 8, the representative director of Nonparty 5 and the managing director of Nonparty 7, who was Nonparty 1’s representative director, invested funds in Nonparty 1 at the time of Nonparty 5’s default, and the fact that Nonparty 5 and Nonparty 1 had not concluded a contract for the (title omitted) hospital repair work and the mechanical installation work between Nonparty 5 and Nonparty 1, which was the means to secure the recovery of investment amount. As such, the contract was pretended to have been concluded, Nonparty 1 was issued a written advance payment guarantee from the Defendant association whose members were Nonparty 1 at the time when Nonparty 1’s default, and the Defendant association was issued a written advance payment guarantee to collect the investment amount after receiving the advance payment as a security deposit for advance payment from the Defendant association. On May 21, 1995, Nonparty 5 drafted a false subcontract with Nonparty 1 on May 26, 1995, for the construction period of KRW 1.320 million,660 million,000,000.

D. On May 24, 1995, the Defendant issued a letter of advance payment guarantee in the amount of KRW 660,000,000 in trust that the said letter of subcontract between Nonparty 5 and Nonparty 1 was genuine under the above guarantee agreement. On June 30 of the same year, Nonparty 1 did not commence the above construction and went bankrupt due to bankruptcy, on December 12 of the same year, the Defendant paid KRW 660,000 to Nonparty 6, the representative director of Nonparty 5, in accordance with the advance payment guarantee agreement.

E. The non-party 1 and the non-party 3 companies were original members of the defendant association before the establishment of the plaintiff association, and all the three companies acquired the status of members of the plaintiff association upon the establishment of the plaintiff association as seen earlier. Meanwhile, in transferring the shares separately from the plaintiff association, the defendant association calculated the amount corresponding to the share ratio of all the assets, such as the entire land and buildings of the defendant association, which are assessed as of the day before the commencement of business, and transferred it to the plaintiff association, and the guaranteed debt that the members shared with the defendant association due to joint and several liability, etc. was transferred to the plaintiff association according to their share ratio. Accordingly, on the ground that the above three companies jointly and severally guaranteed the defendant association's liability for indemnity against the non-party 1, the defendant association transferred the remaining share after deducting only the above advance payment amount of KRW 466,030,534 from the total share of the three companies, such as the share of the three companies.

F. Meanwhile, based on the judgment of the court of first instance on April 13, 1999, the Defendant Union paid KRW 582,282,808 (the principal of the judgment 466,030,534 + delay damages 116,252,274) to the Plaintiff Union.

2. Judgment on the plaintiff's claim

A. The parties' assertion

As seen earlier, as long as the above contract for construction work between Nonparty 1 and Nonparty 5 becomes null and void as a false agreement between Nonparty 1 and Nonparty 5, the Defendant did not incur the obligation to return advance payment under the above contract for construction work with Nonparty 5. Therefore, even if the Defendant paid KRW 660 million to Nonparty 5 according to the above payment guarantee, it is merely a payment without the guaranteed obligation and the Defendant cannot have a claim for indemnity against the above three companies for this reason. However, it is unreasonable to withhold the transfer of the above three companies on the premise that the claim for indemnity exists, and therefore, the Defendant asserted that the Plaintiff is liable to pay the Plaintiff the above amount of 46,030,534 won and damages for delay. Since the above contract for construction work between Nonparty 5 and Nonparty 1 was null and void as a false agreement between the parties, it constitutes a set-off claim against the Plaintiff’s union members and the above three companies, which is a joint and several surety, and thus, the Defendant did not know that the above claim for reimbursement was null and void.

(b) Markets:

According to the facts found above, the defendant union believed to have the obligation to return advance payment to the non-party 6 by the non-party 1's deception, and concluded a guarantee agreement with the non-party 1 and performed the obligation as the guaranteed debt accordingly, so the defendant union has a legal interest in the acquisition of the right to indemnity against the non-party 1. The above acquisition of the right to indemnity requires that the non-party 1's obligation to return advance payment to the non-party 6, who is the principal obligation, should be valid due to the nature of the guarantee. Thus, the defendant union has a legal interest in the acquisition of the right to indemnity based on the false indication that the non-party 1 bears the obligation to return advance payment to the non-party 6. Thus, it is reasonable to deem that the defendant union constitutes a third party under Article 108 (2) of the Civil Act.

On the other hand, the plaintiff argued that the above contract was not genuine when the defendant issued advance payment to the non-party 1, or that it was not known due to gross negligence when he paid advance payment to the non-party 5, and therefore, the defendant did not constitute the "non-party 1" under Article 108 (2) of the Civil Code. Thus, it is not reasonable to consider whether the third party in the conspiracy provided for in Article 108 of the Civil Code is bona fide or not or not, and it is difficult to view that the defendant's association was aware of the above facts at the time of the above advance payment guarantee or the above fact that the defendant's association did not request the above advance payment guarantee against the non-party 1, 2, Eul evidence No. 333 of the above contract, which was the defendant's request for the above advance payment guarantee against the non-party 6's non-party 1, and thus, it cannot be found that the defendant's association received the above advance payment guarantee against the non-party 6's warranty against the non-party 1 and the defendant 6's warranty.

Therefore, the defendant union shall have the right to reimbursement due to the payment of the above deposit against the above three companies as guarantor under the above advance payment guarantee contract. Therefore, the above claim for reimbursement shall be the automatic bond, and the defendant's claim for the share transfer to the defendant union of the plaintiff union according to the above three companies' share ratio shall be the claim for share transfer according to the above three companies' share ratio, and the above claim for share transfer against the defendant union shall be extinguished all of the claim for share transfer which the

The plaintiff asserted that the defendant union issued a payment guarantee for a false construction contract due to the error in the performance of its duties and then transferred its responsibility to the guarantor is not permissible in violation of the good faith principle. However, as seen earlier, inasmuch as the defendant union guaranteed the payment of this case without knowledge of the non-party 6's misconduct, it cannot be said that the defendant union's exercise of the right to indemnity against the above three companies, a joint guarantor, even if there was a negligence in domestic affairs, cannot be said to be contrary to the good faith principle.

According to Article 13 of the above Act, if a member of a mutual aid association has a claim to refund money to a cooperative, it is only required to acquire shares from the cooperative when he withdraws from the cooperative. In this case, the above three companies claim that they did not have a claim to offset against the defendant since they did not withdraw from the cooperative or exercise the right to claim the return of investment amount. Therefore, in light of each provision on the transfer of the investment from the establishment of the mutual aid association by industry and succession of the status of the members, such as the fact that the person qualified as a member of the mutual aid association by industry is a member of the mutual aid association by industry without the procedure of withdrawal from the mutual aid association and the procedure of joining the mutual aid association by industry and immediately becomes a member of the mutual aid association by industry under the same Act, the establishment of the mutual aid association by industry has the character of compulsory division from the defendant mutual aid association under the law, and the transfer of shares should be based on the substantial assessment of the whole property of the defendant mutual aid association (Supreme Court Decision 98Da36474 delivered on February 25, 2000).

In addition, in the lawsuit for confirmation of existence of the obligation (case omitted) brought by Nonparty 2 against the defendant association against the Seoul District Court, the above court rendered a favorable judgment against Nonparty 2 on the ground that the above three companies, a joint and several surety, did not exist, and the above judgment became final and conclusive on the ground that the guaranteed obligation against the defendant of the above three companies, a joint and several surety, did not exist. Thus, in this case, upon receiving the defendant's written counterclaim, the above final and conclusive judgment is inconsistent with the above final and conclusive judgment, and the res judicata effect in the confirmation lawsuit only affects between the parties to the lawsuit, and therefore, the above assertion is without merit.

3. Conclusion

Therefore, the plaintiff's claim in this case based on the premise that there exists a claim for provisional payment against the defendant is without merit. Since the judgment of the court of first instance is unfair in conclusion, the judgment of the court of first instance is revoked upon receiving the defendant's appeal and the plaintiff's claim corresponding to the cancellation part is dismissed. On the other hand, since the judgment of the court of first instance is revoked, the provisional execution sentence of the court of first instance shall also become null and void upon the rendering of this judgment, as seen above, as seen in the judgment of the court of first instance, the plaintiff's damages for delay at the rate of 5% per annum from April 14, 1999 to the date following the date of receiving provisional payment to the date of receiving the above provisional payment (the defendant is entitled to damages for delay at the rate of 6% per annum from the day following the date of receiving provisional payment until the date of delivering the request for return, but the association is a non-profit organization for the service of the members of the defendant and the remaining damages for delay shall be dismissed within the extent of the above judgment's application for provisional payment.

[Attachment List omitted]

Judges Cho Nam-nam (Presiding Judge)