In a case where Company A, as a rental business operator, was appointed Party B as a trustee in bankruptcy after being declared bankrupt, and the council of occupants' representatives was formed Byung and transferred the right to manage an apartment from Party B, the case holding that the duty to accumulate special repair reserve before and after the declaration of bankruptcy and the duty to transfer the right to manage the apartment shall belong to Party B, who is the trustee in bankruptcy, and Party B is also obligated to pay additional amount in addition to the special repair reserve funds accumulated

In a case where Gap corporation, as a rental business operator, was appointed Eul as a trustee in bankruptcy after being declared bankrupt while managing a rental house, and thereafter converted for sale in lots after the council of occupants' representatives was formed, and Byung transferred the right to manage the apartment house from Eul, the case holding that Eul has the obligation to accumulate the special repair reserve fund prescribed by the Rental Housing Act and subordinate statutes after the bankruptcy is declared, since the right to manage the apartment house belongs to Eul, who is the trustee in bankruptcy, and the right to manage the apartment house belongs to Eul, and the obligation to accumulate the special repair reserve fund prescribed by the Rental Housing Act and subordinate statutes after the bankruptcy is declared, Eul succeeds to Eul, and Eul succeeds to the obligation to accumulate the special repair reserve fund before the bankruptcy is declared, and as long as the obligation to accumulate the special repair reserve fund belongs to Eul ultimately, the obligation to transfer the special repair reserve fund belongs to Eul, and the manager has the obligation to collect and accumulate the special repair reserve fund collected and accumulated pursuant to Acts and subordinate statutes, and Eul bears the obligation to transfer the right to manage the apartment house to the new manager.

Article 17-4 of the former Rental Housing Act (wholly amended by Act No. 8966 of March 21, 2008) (see current Article 31), Article 15-4 of the former Enforcement Decree of the Rental Housing Act (wholly amended by Presidential Decree No. 20849 of June 20, 2008) (see current Article 30), Articles 382 and 384 of the Debtor Rehabilitation and Bankruptcy Act

The council of occupants' representatives (Attorney Kim Chang-chul, Counsel for the plaintiff-appellant)

Defendant in bankruptcy (Law Firm continental Aju, Attorney Gyeong-hee, Counsel for the bankruptcy)

Ulsan District Court Decision 2013Na1163 decided October 2, 2013

March 13, 2014

1. Of the judgment of the first instance, the part against the Defendant ordering the Plaintiff to pay in excess of the amount calculated at the rate of 5% per annum from February 20, 2013 to April 10, 2014, and 20% per annum from April 11, 2014 to the date of full payment, among the judgment of the first instance, the amount of KRW 1,095,192,317 as well as the amount of KRW 1,00 to the Plaintiff, shall be revoked, and the Plaintiff’s claim corresponding to

2. The defendant's remaining appeal is dismissed.

3. All costs of the lawsuit shall be borne by the defendant.

4. Section 4 of the judgment of the court of first instance shall be deleted.

[Claim]

The defendant shall pay to the plaintiff 1,095,192,371 won (which seems to be the result of clerical error or error in the amount of KRW 1,095,192,317) and 5% per annum from July 5, 2012 to the service date of a copy of the complaint of this case, and 20% per annum from the following day to the day of full payment.

【Purpose of Appeal】

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

1. Fact-finding according to the order of time;

○○ (O. 20 October 20, 2010) Pyeongtaek Ho Construction Co., Ltd. (hereinafter referred to as “Seoul Chang Construction”) obtained the approval of the project plan on the construction of the 23 new apartment units in the Yongsan-gu ( Address omitted) Seosan-gu (hereinafter referred to as “instant apartment units”).

○ (e.g., May 28, 2003) completed the instant apartment and undergone a pre-use inspection as a rental house at around this time, and thereafter managed the instant apartment as a rental business operator under the Rental Housing Act.

○ ( January 1, 2006) The Pyeongtaek Land did not accumulate special repair reserve funds under the Rental Housing Act from this time.

○ (No. 26, 2006) Cho Chang-gu had defaulted.

○ ( April 25, 2008) Hyeongdae was declared bankrupt by the Seoul Central District Court 2007Hahap68, and the Defendant was appointed as a trustee in bankruptcy on the same day.

○ ( July 4, 2008) In order to continue to comply with the demand of the lessee of the instant apartment, the council of lessees’ representatives of the instant apartment has obtained approval for the direct conversion of the instant apartment to sale in lots from the North Korean head of Ulsan Metropolitan City.

○ ( January 1, 2012) The Plaintiff was constituted.

○ ( July 5, 2012) The Plaintiff acquired the right to manage the instant apartment from the Defendant.

[Reasons for Recognition] Facts without a partial dispute, Gap evidence Nos. 1, 2, 3, 11, and 13, the purport of the whole pleadings

2. Relevant statutes;

Article 17-4 (Accumulation, etc. of Special Repair Appropriation Funds) (1) A rental business operator of rental housing under the provisions of Article 17 (1) of the former Rental Housing Act (wholly amended by Act No. 8966, Mar. 21, 2008; June 22, 2008; hereinafter referred to as the "Special Repair Appropriation Funds") shall accumulate special repair appropriation funds required for the replacement and repair of main facilities.

Article 15-4 (Rate, Use Procedure, etc. of Special Repair Appropriation Funds) (3) of the former Enforcement Decree of the Rental Housing Act (wholly amended by Presidential Decree No. 20849, Jun. 20, 2008; June 22, 2008; hereinafter referred to as "special repair appropriation reserve") shall be accumulated every month from the date one year has elapsed after an inspection for use (referring to approval for temporary use where approval for temporary use is obtained) and the accumulation rate shall be as follows: (4) Special repair appropriation reserve shall be deposited in a financial institution under the joint name of a rental business operator and the head of a Si/Gun/Gu having jurisdiction over the location of the relevant rental house: Provided, That where a rental business operator is the State, a local government, the Korea National Housing Corporation, or a local public corporation, it may be separately managed in a financial institution under the sole name:

Article 31 (Accumulation, etc. of Special Repair Appropriation Funds) (1) A rental business operator of rental housing under Article 28 (1) of the current Rental Housing Act, in force from June 22, 2008, shall accumulate special repair appropriation funds required for the replacement and repair of main facilities. (2) A rental business operator who intends to convert the constructed rental housing into sale after the expiration of the mandatory rental period, shall deliver the special repair appropriation funds accumulated pursuant to paragraph (1) to the council of occupants' representatives organized for the first time pursuant to Article 43 of the Housing Act.

Article 30 (Rates, Procedures, etc. for Use of Special Repair Reserve Funds) (3) A rental business operator shall accumulate special repair reserve funds under Article 31 (1) of the Act (hereinafter referred to as "special repair reserve funds") every month from the date on which one year elapses from the date of inspection of use (referring to the date of approval for temporary use where approval for temporary use is obtained) and shall be in accordance with the following ratio:

3. Establishment of obligation to pay special repair reserve funds.

가. 특별수선충당금 적립의무가 궁극적으로 누구에게 귀속되는지 ⇒ 피고

The obligation to accumulate the special repair reserve fund prescribed in the Rental Housing Act before the declaration of bankruptcy is apparent in the relevant laws and regulations. The following is examined: ① Whether the obligation to accumulate the special repair reserve fund prior to the declaration of bankruptcy prior to the declaration of bankruptcy is succeeded to the defendant who is the trustee in bankruptcy after the declaration of bankruptcy; ② whether the obligation to accumulate the special repair reserve fund prescribed in the Rental Housing Act and the Rental Housing Act after the declaration of bankruptcy is attributed to

(1) Whether the obligation to reserve the special repair reserve under the Rental Housing Act belongs to the defendant after bankruptcy is declared.

This Court determines that the obligation to accumulate the special repair reserve prescribed in the Rental Housing Act after the declaration of bankruptcy is vested in the defendant who is the bankruptcy trustee for the following reasons:

First of all, since all property owned by the bankrupt at the time that the bankrupt is declared bankrupt belongs to the bankruptcy trustee, the bankruptcy trustee has the same status as the general successor of the bankrupt (see Supreme Court Decision 2002Da48214, Jun. 24, 2003). In light of the above legal principles, the owner of the apartment of this case before the declaration of bankruptcy and conversion for sale for sale for sale for sale for sale for sale for sale for sale for sale for sale for sale for sale for sale for sale for sale for sale for sale for the apartment of this case constitutes the bankruptcy estate, and the right to manage the apartment of this case belongs to the defendant, who is the bankruptcy trustee, and the obligation which is bound to be accompanied by the above management for the above management for the defendant, and the obligation to pay expenses for the apartment of this case belongs to the defendant. For example, if the defendant repaired the common use area of the apartment of this case while managing the apartment of this case, it is natural to bear the responsibility to pay expenses for the repair and repair of the apartment of this case, and there is no reason to

The Constitutional Court en banc Order 2009Hun-Ba37 Decided April 28, 201 also ruled, “The cost of repairing the special repair reserve under the Rental Housing Act is the cost required for the timely replacement and repair of the main facilities, and the deterioration of the apartment house is rapidly ongoing and accumulated as time elapses, while the cost of repairing the apartment house is considerably required at once, so that the management entity can use it in a timely manner after depositing a certain amount every month.” This does not change the nature of the special repair reserve and the cost of repairing the apartment house.

It is clear that the accumulation of special repair reserve is one of the management affairs of rental apartments. In this regard, the above 2009Hun-Ba37 decision also requires the accumulation of reserve funds because there are many cases where the defects of major facilities of multi-family housing threaten many people's physical safety and life stability, and the amount required for repairing and maintaining the building is rapidly increased by water supply as time elapses. In particular, the possibility of damage and replacement because there are many cases where main facilities, such as construction materials, etc., such as rental housing, such as rental housing, are low compared to the general house for sale, and in the case of lessee of rental housing, there are many cases where the installation is replaced before the expiration of the life due to the lack of the equipment, compared to the tenant of the house for sale, and the installation is replaced before the expiration of the life period. In particular, the recent domestic apartment house has the high competitiveness of accumulation of reserve funds through the construction and management of the national housing, which has a big significance in the construction and management of the housing, and thus has a big significance in the maintenance and management of the national housing.

In addition to the legal logic as above, the Rental Housing Act interpreted that if a rental business operator goes bankrupt as the defendant's assertion, the person to accumulate the special repair appropriation fund will lose and be limited to the purpose of the installation of the special repair appropriation fund system (if a rental business operator goes bankrupt, the necessity to accumulate the special repair appropriation fund is strong) and considering the whole purport of the pleading in the statement in the evidence No. 7, the defendant himself has occupied and managed all the property including the apartment in this case by sending a public letter to the council of lessees' representatives of the apartment in this case on April 30, 2008, and he has demanded that the defendant occupy and manage the new bank account of the bankruptcy estate, and accordingly, it can be recognized that the monthly rent has been paid monthly rent from some lessees. Accordingly, the defendant's argument that the obligation to accumulate the special repair appropriation fund is not attributable to himself with the monthly rent being paid only.

On the other hand, the defendant asserts that the apartment of this case and its site are registered in the name of the trust company at the time of the declaration of bankruptcy on the Pyeongtaek-si case, and that the apartment of this case does not constitute the bankruptcy estate, so we will look forward below.

In order to manage and preserve the ownership of the apartment in this case until the completion of the conversion for sale in lots, the trust company entered into a real estate management trust contract with the trust company, and completed the registration of trust and the registration of ownership transfer on the building, etc. in the future of the trust company, according to the above trust contract, the beneficiary is the rental business operator, the trust principal, the trust deposit, the property acquired by subrogation on the apartment in this case and the trust real estate in this case, and other equivalent matters. The trust period shall be from the date when the trust contract is concluded to the date when the conversion for sale in lots is completed, and the trust period shall be from the date when the trust contract is concluded to the date when the trust contract is completed, the beneficiary shall pay the trustee the trust fee, settle the trust fee, and apply for the registration of ownership transfer and cancellation of the trust registration, etc. on the trust property, or in accordance with the purport of the entire pleadings (see Supreme Court Decision 8Da8435, Nov. 29, 2012

Since the duty to accumulate special repair reserve funds under the Rental Housing Act is to manage and preserve the ownership of the apartment of this case, the duty to accumulate special repair reserve funds under the above trust contract is still to be deemed to be attributed to the Pyeongtaek Ho Construction, which is a rental business operator (A evidence No. 11 can be known that the special repair reserve funds was deposited in the accounts of the National Agricultural Cooperatives Federation (Account Number omitted) after the conclusion of the above trust contract, in the name of the trust company, even if the ownership of the apartment of this case was registered in the name of the trust company at the time the bankruptcy was declared, it is reasonable to view that the right to claim the transfer of ownership of the apartment of this case constitutes the bankruptcy estate and the management of the apartment of this case, which can be deemed to have been combined with the above claims, still belong to the trustee in bankruptcy. Considering that most of the management affairs of the apartment of this case are attributed to the trust company of this case, the above assertion by the trust company at the time when the trust relationship is terminated is reasonable to view that it ultimately belongs to the defendant or the trustee in bankruptcy.

(2) Whether the duty to accumulate the reserve fund for special repair prior to the declaration of bankruptcy is succeeded to the defendant who is the bankruptcy trustee.

Even if the right to manage the apartment of this case belongs to the defendant who is the bankruptcy trustee, and the obligation which is bound to be accompanied by the above management also belongs to the defendant, the obligation to accumulate the special repair reserve under the Rental Housing Act, which is borne by the bankruptcy debtor, is bound by the large framework of the management of the apartment of this case, along with the right to receive the rent from the lessee, etc. However, the specific repair reserve itself is a separate administrative law, which is separate from the management of the apartment of this case, and it is difficult to regard the specific repair reserve fund itself as a property obligation in the area of civil law that should be applied to the bankruptcy claim confirmation procedure, etc., and there is no ground to conclude that the obligation is naturally succeeded to the defendant, who is the bankruptcy trustee who has not entirely managed the apartment of this case during the pertinent period (the defendant's claim on November 25, 2013 as stated in the preparatory brief No. 4 of this case).

However, this Court decides that the obligation to accumulate special repair reserve prior to the declaration of bankruptcy is also succeeded to the defendant who is the trustee in bankruptcy. The specific reasons are as follows.

First, as seen earlier, the duty to accumulate the special repair reserve under the Rental Housing Act, which is borne by Pyeongtaek Chang-si, was derived from the management area of the apartment of this case, and even if the defendant, who is the trustee in bankruptcy, has managed the apartment of this case after the declaration of bankruptcy, the above duty to accumulate is clear to deem that the defendant had succeeded to the duty to accumulate the previous special repair reserve accompanying the management of the apartment of this case, as long as the defendant had been involved in the management of the apartment of this case, and the above theory of objection seems somewhat to be somewhat complicated. In other words, the deterioration of the apartment of this case seems to have been carried out and accumulated as soon as the management of the apartment of this case was completed from any specific point of time, as the manager is not exempted from the liability to manage the apartment of this case due to the declaration of bankruptcy of Pyeongtaek Chang-si, it is reasonable to view that the defendant also who is entrusted with the management of the apartment of this case due to the management of the apartment of this case (including the existing special repair reserve fund of this case in the apartment of this case).

Second, even if the position to distinguish the duty to accumulate the special repair reserve and the management of the apartment of this case, it can be said that the nature of the duty to transfer the special repair reserve prior to the declaration of bankruptcy, which is the property obligation of the debtor's administrative law or the duty to transfer the special repair reserve prior to the declaration of bankruptcy, has been changed due to the transfer of the special repair reserve, which is the property obligation of the debtor's property in the civil law area, after the declaration of bankruptcy, even though the position to distinguish the duty to accumulate the special repair reserve and the duty to transfer the apartment of this case, which is the duty under the administrative law of the debtor of bankruptcy

Third, in order to achieve the purpose of the special repair reserve system as mentioned above and the legislative purpose of the Rental Housing Act, any group is required to accumulate the special repair reserve regardless of the bankruptcy, and if the bankruptcy debtor fails to accumulate the special repair reserve fund before the bankruptcy debtor is declared bankrupt, there is no way to achieve the above legislative purpose.

나. 특별수선충당금 인계의무가 궁극적으로 누구에게 귀속되는지 ⇒ 피고

As long as the duty to accumulate the special repair reserve before and after a declaration of bankruptcy is ultimately vested in the defendant, the obligation to transfer the reserve also belongs to the defendant, in conformity with the provisions of the relevant rental housing laws and regulations consistent with the person liable to accumulate the special repair reserve and the person liable to transfer the reserve. Furthermore, it is clear that the person entitled to file a claim for the transfer of the special repair reserve against

Meanwhile, in Article 17-4 (2) of the former Rental Housing Act, the phrase “a rental business operator shall make a conversion of constructed rental housing after the expiration of the mandatory rental period”, and in Article 31(2) of the current Rental Housing Act, the phrase “a rental business operator intends to make a conversion of constructed rental housing after the expiration of the mandatory rental period into parcelling-out” is used, and it does not seem to be entirely impossible to interpret that the obligation to transfer the special repair reserve arises only

However, there is no practical need to interpret the obligation to transfer special repair reserve by distinguishing between voluntary conversion for sale in lots and direct approval of conversion for sale in lots by the administrative agency, and it is recognized that the defendant concluded a contract to make conversion for sale in forms with the permission of the court at the request of the lessee and implemented the procedure (Article 3 of the preparatory document as of December 24, 2013), and Article 8, 9, and 10 of the evidence can be acknowledged that the defendant submitted a written agreement for conversion for sale in lots to the plaintiff and entered into a housing sales contract with the lessee. Considering the above facts, it is reasonable to view that Article 17-4 (2) of the former Rental Housing Act and Article 31 (2) of the current Rental Housing Act of the former Rental Housing Act are equally applied not only to the voluntary conversion of rental business operators, but also to the direct conversion approval of the administrative agency's conversion for sale in lots at least in the case of the defendant's voluntary conversion in this case.

4. Scope of the obligation to pay special repair reserve funds.

Ultimately, the reserve funds to be transferred to the Plaintiff after the Defendant directly reverted to himself/herself or by succeeding to the Pyeongtaek Land, shall be from May 28, 2003, which was the date of the use inspection of the apartment of this case, to July 4, 2012, the day before the Defendant transferred the right to manage the apartment of this case to the Plaintiff (see Supreme Court Decision 2012Da43263, March 28, 2013; Supreme Court Decision 2011Na4321, April 25, 2012; and Gwangju District Court Decision 2010Ga9087, July 21, 201, which was the date of the use inspection of the apartment of this case).

In regard to this, the defendant asserts that his obligation to transfer the special repair reserve funds actually accumulated until he transfers the management right of the apartment of this case to the plaintiff is all satisfied. However, even if the person who is the final obligor of the special repair reserve fund is the owner of each house for the purpose of the purpose of the Rental Housing Act and the legislative purpose of the Rental Housing Act, the defendant has the obligation to collect and accumulate the special repair reserve funds, and the manager has the obligation to transfer the above repair reserve funds collected and accumulated in accordance with the laws and regulations (Article 17-4 (2) of the former Rental Housing Act and Article 31 (2) of the current Rental Housing Act Article 31 (2) of the current Rental Housing Act clearly states that each phrase "a deposit made in accordance with the provisions of paragraph (1)" should be transferred to the new manager (see, e.g., Supreme Court Decision 2012Da43263, Feb. 29, 2012).

Meanwhile, according to each statement of evidence Nos. 9 and 10, when the non-party 1 and 2, some of the tenants for sale in lots in lots, enter into a sales contract for sale in lots with the defendant, the fact that the defendant entered into an agreement with the defendant that "the defendant shall carry out all documents and procedures (Article 15) so that the council of occupants' representatives organized after the conversion in lots of the apartment of this case can receive the special repair reserve accumulated and deposited by Pyeongtaek Changto," but it is only impossible to bind the plaintiff who is not the party to the contract, and it is also difficult to promptly pay the accumulated and deposited special repair reserve funds, and it is not read to the effect that the defendant's obligation to pay the special repair reserve funds is exempted.

5. Judgment on the defendant's defense

(a) Waiver of claim;

First of all, the defendant raises a defense that the plaintiff renounced the remainder of the special repair reserve fund in addition to the deposit amount.

According to the evidence No. 3, the plaintiff can be found to have entered into an agreement on July 5, 2012 with the following contents (hereinafter referred to as the "agreement of this case") after being transferred the right to manage the apartment of this case from the defendant on July 5, 2012. However, this alone cannot be derived from the waiver of the plaintiff's claim for special repair reserve fund, and the defendant's defense is not accepted. The specific reasons are as follows.

- In case of transferred items: Special repair reserve 346,535,381 won, and design documents, equipment specifications, etc. kept in the apartment management office and complex of this case, which have been deposited until this is registered in the name of Pyeongtaek land (the transaction seal of the head of Pyeongtaek-gu and Ulsan Metropolitan City, jointly reported in accordance with the provisions related to the Enforcement Decree of the Rental Housing Act);

- Other matters: (1) The apartment occupants of the instant apartment are clearly aware of the adjudication of bankruptcy on the common land and have been converted for sale in lots in accordance with the current status, and (2) the agreement was made not to make any request or objection against the defendant with respect to the warranty of defects and defect repair liability under Article 9 of the Housing Sale Contract (Maintenance of Facilities and Transfer of Management Affairs). Accordingly, the plaintiff and the defendant agree not to make any request or objection against the defendant with respect to the management right of the instant apartment in accordance with the current status.

First, the waiver or exemption of a claim does not necessarily require an explicit declaration of intent, but must be recognized in cases where it can be deemed a waiver of a claim by means of a certain act or an interpretation of an obligee’s intent. However, for such recognition, the application of the waiver or exemption of a claim must be determined by strict interpretation of an obligee’s act or declaration of intent in accordance with the contents of the pertinent legal relationship (see Supreme Court Decision 2011Da94509, Jun. 13, 2013).

Second, there is no content that the Plaintiff waives the remaining claims for special repair reserve funds. However, in the case where the Plaintiff acquired the right to manage the apartment of this case according to the current status, the Plaintiff agreed not to claim or raise an objection to the Defendant regarding the management right transfer. In light of the legal principles as seen earlier, it is unreasonable to interpret the objection raised here as the waiver of the remaining claims for special repair reserve funds.

Third, the part concerning other matters of the agreement in this case takes up ①, ② the contents of the agreement after listing them, and considering the composition and text of the agreement in this case, the rights given up by the plaintiff through the agreement in this case can only be seen as a warranty against the defendant and a liability for repairing defects. According to each of the statements in the evidence Nos. 9 and 10, it can be seen that Article 9 of the Housing Sale Contract (sale Conversion) Agreement referred to in this case is subject to the major regulation.

Fourth, the Supreme Court Decision 2012Da101312 Decided March 28, 2013 also denied the waiver of the special repair allowance claim in a case similar to this case by holding that "the special repair allowance for a rental business operator under Article 17-3 of the former Rental Housing Act (amended by Act No. 6833, Dec. 26, 2002) is prepared for the implementation of a long-term repair and maintenance plan for rental housing and is mandatorily accumulated by a rental business operator to promote the stability of national residential life by preventing the deterioration of a building, and is distinct from the duty of defect repair to be borne by a rental business operator who sells a house. Therefore, even if the agreement was reached that all defects are deemed to have been completed, such agreement may be deemed to have been partially exempted from the rental business operator's liability to compensate for defects."

Fifth, even if the plaintiff asserted that he renounced the remaining claims for special repair reserve through the agreement in this case, or submitted Gap evidence Nos. 5, 6, and 13 which can be read to the same purport, it is merely a assertion or statement that recognizes the legal relationship or legal effect which is the premise of the subject matter of a lawsuit, and it cannot be seen as a confession in this case (see Supreme Court Decision 2007Da87061, Mar. 27, 2008). Thus, the legal principle on confession cannot be applied to this case.

Sixth, the Plaintiff asserted that the remaining special repair reserve claims were renounced through the agreement in this case, and the Defendant, through the 8th page of the preparatory document dated November 25, 2013, stated that the agreement in this case was not a waiver of the remaining special repair reserve claims. The above position seems to be due to the plaintiff's litigation strategy and the defendant's litigation strategy to change the special repair reserve claims into the unjust enrichment return claim or damages claim and incorporate them into the estate claims. Accordingly, the court did not seem to be bound by the court, and the Plaintiff also did not depend only on the cancellation of the agreement in this case by emphasizing that the claims for special repair reserve claims themselves were estate claims based on the preparatory documents, etc. as of November 3, 2014, by focusing on the fact that the first instance court was the estate claims themselves subject to the special repair reserve claims by the Plaintiff.

Sixth, even if the Plaintiff’s assertion that the agreement in this case was cancelled by mistake or that the agreement in this case was cancelled by mistake, the agreement in this case should be deemed null and void from the beginning. As such, the Plaintiff’s submission and statement of a preparatory document dated March 13, 2014, which was not a new claim for return of unjust enrichment, was based on the Defendant’s submission and statement on March 13, 2014, and the Plaintiff also focused on its assertion on the nature of the special repair reserve fund claim rather than on the claim for return of unjust enrichment due to the cancellation of the agreement in this case through the reference document. In light of the above litigation background, it can be deemed that the Plaintiff’s assertion or statement that the Plaintiff renounced the claim for the remaining special repair reserve fund through

(b) Bankruptcy claims;

Next, the defendant asserts that the plaintiff's claim for special repair appropriation constitutes a claim on property arising from a cause arising before bankruptcy is declared, and the claim for payment by the lawsuit in this case without resorting to bankruptcy procedure is unlawful as there is no benefit in the protection of rights, but it is not accepted for the following

First, Article 423 of the Debtor Rehabilitation and Bankruptcy Act provides that "a claim on the property that has arisen before the declaration of bankruptcy against an obligor shall be a bankruptcy claim." In this case, a claim that has arisen before the declaration of bankruptcy does not require specific confirmation of the contents of a claim that has already been made at the time of the declaration of bankruptcy or that the maturity has arrived, and at least a major cause of a claim exists before the declaration of bankruptcy. However, if it is merely a simple expectation right on the occurrence of a claim, it does not constitute a bankruptcy claim (see Supreme Court Decision 2011Da84335, Nov. 29, 2012).

Second, the claim for the special repair reserve of this case where the plaintiff is seeking payment against the defendant is deemed to have caused the principal cause of the claim only after approval for the transfer of the apartment of this case for sale in lots was granted, and the approval for the conversion for sale in lots was made after the adjudication of bankruptcy for the construction in common. This is because, before the conversion for sale in lots was made, it shall be deemed that there is only a simple expectation right that the right to claim for the transfer of the special repair reserve of this case may arise to the council of occupants' representatives if the sale in lots is made later by the tenant of this case who can be a member of the council of occupants' representatives or the council of occupants' representatives.

Third, the above Decision 201Da84335 also states that the plaintiffs, who were not the lessee of the apartment in this case, exercised the right to claim the sale of the apartment in this case by obtaining the approval of the conversion for sale directly from the head of Ulsan-do North Korean government in accordance with the newly established provisions of the Act enforced from June 22, 2008, which was established after the bankruptcy was declared to the tenant of the apartment in this case. Examining the above facts in light of the legal principles as seen earlier, it is clear that the right to claim the transfer registration of the ownership of the apartment building in this case based on the sale contract established by the plaintiffs' exercise the right to claim the sale of the apartment in this case was not caused before the bankruptcy was declared to the Pyeongtaek-gu, and at the time of the declaration of bankruptcy, the time of approval for the conversion for sale in lots does not constitute bankruptcy claims.

Fourth, the fact that the defendant submitted a written agreement for conversion to sale in lots to the plaintiff and entered into a housing sales contract for the apartment of this case with the lessee is as seen earlier. Considering the above fact of recognition, it is reasonable to view that the plaintiff's special repair reserve claim against the defendant constitutes "the claim arising from the act of bankruptcy in relation to the bankrupt estate" under Article 473 subparagraph 4 of the Debtor Rehabilitation and Bankruptcy Act.

Fifth, the defendant asserts that the special repair allowance claim of this case is a subordinate bankruptcy claim under Article 446 of the Debtor Rehabilitation and Bankruptcy Act with a claim for non-performance of obligations under public law. However, there is no reason to extend or alter the special repair allowance claim of this case, which does not fall under Article 446 or subparagraph 2 of Article 473 of the above Act, as alleged by the defendant.

Sixth, the obligation to pay the special repair appropriation reserve to be accumulated before the declaration of bankruptcy from the ordinary perspective constitutes bankruptcy claims, and the obligation to pay the special repair appropriation reserve to be accumulated after the declaration of bankruptcy is possible. However, the Plaintiff’s claim in this case does not require the rental business operator or his/her successor to accumulate the special repair appropriation reserve under the Rental Housing Act and subordinate statutes, but transfers the special repair appropriation reserve to be accumulated. Since the above claim for transfer occurs only when the sale for sale is made, there is no logical basis by dividing the nature of the special repair appropriation reserve fund claim in this case, depending on whether or not the obligation to pay was incurred before the declaration of bankruptcy.

(c) Damages for delay shall be junior bankruptcy claims;

Finally, the defendant's claim for damages for delay of the claim for the special repair reserve of this case constitutes "amount of damages caused by the failure to perform the obligation after the declaration of bankruptcy", which is a subordinate bankruptcy claim under Article 446 (1) 2 of the Debtor Rehabilitation and Bankruptcy Act. Thus, the defendant's claim for the payment of damages for delay is also unlawful. However, the bankruptcy trustee is obligated to pay the estate claim at any time (Article 475 of the above Act). Since the bankruptcy trustee is obligated to pay damages for delay of the estate claim, the bankruptcy trustee shall pay damages for delay due to delay of the estate claim. In such case, the claim for damages for delay also constitutes the estate claim (see Supreme Court Decisions 2002Da53865, Nov. 12, 2004; 2009Da38551, Jun. 24, 2011, etc.

Therefore, the defendant's above defense is without merit.

6. Conclusion

A. Summary and the meaning of the court judgment

This court accepted the plaintiff's claim for the special repair reserve of this case on the basis that the obligation to accumulate the special repair reserve under the laws and regulations of rental housing belongs to the defendant, and the obligation to accumulate the special repair reserve prior to the declaration of bankruptcy in the field of Pyeongtaek is also succeeded to the defendant.

The purpose of the Rental Housing Act is to stabilize the residential life of the people ultimately by examining the purpose of the accumulation and transfer system of special repair reserve funds and promoting the construction of rental houses, and also to find a construction in accordance with the purpose of the Debtor Rehabilitation and Bankruptcy Act, which makes it difficult to liquidate and distribute the debtor's property fairly.

B. The defendant's duty finally arranged

Therefore, considering the fact that the Defendant already transferred to the Plaintiff KRW 346,535,381 after deducting the remainder of KRW 1,095,192,317 from the special repair appropriation reserve to be handed over to the Plaintiff, and the fact that the Defendant’s delivery of a copy of the complaint of this case including the meaning of the peremptory notice on performance, the Defendant shall set the damages for delay as prescribed by the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings from the date immediately following the date of the first judgment to April 10, 2014 (if a partial claim is dismissed, the first instance court applied the above special law from the date following the date of the first judgment to the date of the delivery of a copy of the complaint of this case while dismissing the Plaintiff’s damages for delay, and the persuasive power of the first instance judgment is not so high, and the Defendant, the obligor, who is a debtor, is at the point of time to dispute the existence or scope of the obligation to perform the claim in this case by 20% from the date of the first judgment to the date of the second judgment.

C. Final answers to the purport of the claim and appeal

Therefore, the plaintiff's claim of this case is justified within the scope of the above recognition, and the rest of the claim is dismissed as it is without merit. Since the judgment of the court of first instance partially accepted the defendant's appeal, and the part of the judgment of the court of first instance against which the defendant ordered payment in excess of the amount recognized above is revoked, and the remaining part of the judgment of the court of first instance is justified as a result, and the remaining part of the judgment of the court of first instance is eventually justifiable, and the defendant's remaining appeal is dismissed, but individual compulsory execution against the property belonging to the bankrupt foundation is not allowed as a matter of principle (see Supreme Court Order 2006Ma1277, Jul. 12, 2007). Thus, the decision of the court of first instance ordering a

Judges Yang Sung (Presiding Judge)