Plaintiff (Law Firm Won, Attorneys Jeon Dong-dong et al., Counsel for the plaintiff-appellant)

Nonparty 1 in bankruptcy, who is the bankrupt bankruptcy trustee, the bankrupt bankruptcy trustee, the Poscop’s lawsuit taking over by the bankrupt

Bankrupt Co., Ltd.

Seoul Eastern District Court Decision 2009Kahap2222 Decided July 22, 2009

Seoul High Court Decision 2009Na70939 Decided March 11, 2010

Supreme Court Decision 2010Da31792 Decided August 26, 2010

January 27, 2011

1. At the request of the change in exchange at the trial, the court determines that the ordinary bankruptcy claims against the Plaintiff’s bankrupt corporation are KRW 1,456,641,095, and subordinate bankruptcy claims are KRW 21,797,260,000.

2. The plaintiff's main claim and the remainder of the conjunctive claim that are changed exchanged at the trial are all dismissed.

3. Of the total litigation costs, 50% is borne by the Plaintiff, and the remainder is borne by the Defendant, respectively.

The judgment of the court of first instance is revoked, and the plaintiff has confirmed that there was a bankruptcy claim of KRW 2,710,246,575 against the Posco Co., Ltd. (hereinafter referred to as the "Posco"). In addition, the plaintiff has confirmed that there was a bankruptcy claim of KRW 2,769,287,671 against the Posco Co., Ltd. (hereinafter referred to as the "Posco") (the plaintiff sought compensation against the original defendant in advance and sought return of unjust enrichment in advance, and then the lawsuit was changed in exchange to seek the confirmation of the bankruptcy claim as above).

1. Basic facts

The reasoning for this part of this Court is as stated in Paragraph 1 of the judgment of the court of first instance, and thus, it shall be accepted in accordance with the main sentence of Article 420 of the Civil Procedure Act, and shall be either solid or solid as follows:

A. On the two pages 7 of the judgment of the first instance court, the Defendant Co., Ltd. (hereinafter “Defendant Co., Ltd.”) was “Pst Co., Ltd.” and each of the “Defendant Co., Ltd.” from 2 pages 9 to 6 pages 12 of the judgment of the first instance. The Defendant Co., Ltd. was committed in each of the “Pst Co., Ltd.”.

B. On the other hand, with respect to the real estate of this case, at the auction procedure conducted on May 25, 2006 by Nonparty 2’s non-party 3’s application (the claimed amount of KRW 600 million) and the decision of compulsory commencement of auction was conducted on May 25, 2006. The United Nationscom received the repayment of the principal and interest of the loan to the Youngsung Mutual Savings Bank, a collateral security debt through the sales contract of this case, and paid the interest of KRW 89,905,469 from that time until January 3, 2006 on behalf of the Plaintiff. Despite the payment of interest of Non-party 2, the payment of the principal and interest of the loan including the above collateral loan was made on behalf of the non-party 2, and it was eventually made on June 26, 2006 through a voluntary auction procedure conducted on June 6, 2016 by the court.

C. On 6 pages 9 of the first instance court decision, the “voluntary auction procedure based on the instant right to collateral security” was changed to “in the above auction procedure.”

D. On January 15, 2009, the part of the first instance court’s 6th to 13th 12th 13th e.g., “k., the Plaintiff received all claims, such as the right to claim the return of the intermediate payment and the remainder due to the nonperformance of the instant sales contract from the UNcom on January 15, 2009, including interest incidental thereto, unjust enrichment, and penalty.”

E. On November 30, 2009, when the court of first instance held on February 4, 2010, Nonparty 1 was declared bankrupt on November 30, 2009, Seoul Central District Court 2009Hahap33 and 76 (Consolidation) and was appointed by Nonparty 1 as the bankruptcy trustee. On January 6, 2010, the bankruptcy court reported on the claim that the Plaintiff had a total of KRW 7,648,532,417 against the PoscoF, and the Defendant raised an objection against the total amount of the Plaintiff’s reported claim on February 4, 2010.

F. Of the grounds for recognition of the 6th 13th 13th eth 13th eth 7th eth 7th eth eth eth eth eth eth eth eth est

2. Determination on the main defense, etc.

(a) Litigation trust defenses;

With respect to the instant lawsuit seeking confirmation of bankruptcy claim concerning the amount of takeover on the ground that the Plaintiff acquired all rights relating to the instant sales contract, such as the claim for damages and the claim for restitution of unjust enrichment, due to the Plaintiff’s nonperformance of obligations against the above company’s Citccop, the Defendant asserts that the Plaintiff’s taking over the above claim from the UNTcom and conducting the instant lawsuit as the transferee constitutes a litigation trust prohibited by Article 7 of the Trust Act.

However, it is difficult to view that the act of Locom transferred the above claim to the Plaintiff by itself constitutes a litigation trust, and there is no other evidence to acknowledge it. Accordingly, the Defendant’s defense on this part is without merit.

(b) Whether the bankrupt person's application for intervention in the defendant's co-litigation is appropriate;

The Plaintiff asserts that the instant application for intervention by the Bankrupt Co., Ltd. (hereinafter “Supplementary Intervenor”) is unlawful. However, the right to manage and dispose of the property constituting the bankrupt estate is exclusively vested in the bankruptcy trustee by the declaration of bankruptcy, but the ownership of the property owned by the foundation is still a bankrupt, and the judgment is still effective in the lawsuit against the bankrupt estate by the bankruptcy trustee, who is the person in charge of legal action by the third party, in the lawsuit against the bankrupt estate by the bankruptcy trustee (Article 218(3) of the Civil Procedure Act), and the bankrupt may intervene in the co-litigation in the lawsuit against the bankruptcy trustee (Article 218(3)).

3. Determination as to the cause of action

A. The main claim

1) The assertion

The Poscop is liable to compensate for damage as seen below with respect to the Posco, and the Plaintiff acquired the above damage claim against the Poscop from the Poscom. Therefore, the Plaintiff seeks confirmation against the Defendant as to the existence of a claim of KRW 2 billion, which is a part of the above transfer amount, and damages for delay.

A) As the Poscco sells the instant real estate to Nonparty 2 and sells the said real estate to Eticom with the completion of the registration of ownership transfer, it is obligated to acquire the instant real estate from Nonparty 2 and register the ownership transfer. The re-sale contract between Poscco and Nonparty 2 with respect to the instant real estate was cancelled on July 28, 2006 by Nonparty 2’s declaration of intention of cancellation. Accordingly, as Poscco was unable to perform the duty of registration of the above transfer, the Poscco was obligated to pay KRW 5,339,389,050, which is equivalent to the market price of the said real estate, as compensation for damages due to the nonperformance of performance.

B) Even if the Austria decided to purchase the instant real estate from Nonparty 2 and 3 on March 22, 2007, after the termination of the said re-sale contract, the above sales contract clearly expressed the intent to refuse the performance of the above obligation to transfer the ownership of the instant real estate, on the premise that the Austria sells the instant real estate to a third party. As such, the Austria is obliged to pay the remainder of KRW 5,249,483,581, which is the amount calculated by deducting KRW 89,905,469, which is the claim for damages or indemnity, from the market price of the instant real estate at the time of the said declaration of refusal of performance, at KRW 5,339,389,05,00, which is equivalent to the market price of the instant real estate at the time of said declaration of refusal of performance.

C) Even if the obligation to transfer the ownership of the instant real estate was not fulfilled, the obligation to pay KRW 89,905,469 to the Poscisf for the Poscis and the obligation to transfer the ownership of the Poscisf for the Poscis in concurrent performance relationship. As such, the obligation to transfer the ownership of the Poscisf on the premise that the Poscis deposits the said money, is in a state of delay, the Poscis is liable to compensate the Poscis for damages of KRW 5,339,389,050, which is equivalent to the market price of each of the instant real estate.

2) Determination

A) Whether liability for damages was established due to impossibility of performance

(1) First, for the time when the obligation to transfer the ownership of this case is impossible, the obligation to perform the obligation is not simply absolute and physical impossibility, but also in light of the empirical rules or transaction concept in the social life, where the obligee cannot expect the realization of the obligor’s performance (Supreme Court Decision 2000Da22850 Decided January 24, 2003). Thus, even if the seller sells real estate owned by another person, the seller’s obligation to transfer the said real estate from the owner cannot be deemed to have yet been impossible to perform the obligation to transfer the ownership of the seller, unless the seller is able to acquire and transfer the said real estate from the buyer.

However, according to the facts found above, it is recognized that Non-party 2 expressed his intention of rescission of the re-sale contract of this case on July 28, 2006 on the ground of delay of the Austria, but it was concluded again on March 22, 2007 with Non-party 2, 2007, and on June 15, 2007, the non-party 2 continued to acquire the ownership of the real estate of this case, such as the payment of the down payment to Non-party 2. The real estate of this case was eventually awarded a successful bid at the auction procedure, and there is no evidence to view that the Austria acquired the real estate of this case from the Austria, and transferred it to the UNFCCCcom, even after the non-party 2's declaration of intention to perform the above obligation to transfer the ownership of this case, it is reasonable to deem that the above obligation to transfer the real estate of this case could have been rescinded by social norms.

(2) Next, since the existence of a cause attributable to the Austria as to the above impossibility of performance, while the Austria failed to perform the obligation of the transfer registration of the real estate in question, it led to the impossibility of performance by winning a successful bid for the Austria, as seen earlier. However, in light of the above facts acknowledged and the following circumstances, enttcom did not pay the interest accrued to the Soung Mutual Savings Bank, which is the above collateral security obligation through the sales contract of this case, and it did not pay the interest properly. Accordingly, even if Nonparty 2 paid the above interest amount of 89,905,469 won, which is part of the interest accrued to the above collateral security obligation, in accordance with the agreement with the Austria, the obligation of the above performance of the obligation of the above performance of the obligation of the transfer registration of the real estate in question, the obligation of the above performance of the obligation of the above performance of the obligation of the above performance of the obligation of the transfer registration of the Austria to the above performance of the obligation of the sale of the real estate in question, it cannot be seen from the auction procedure of this case.

Therefore, the above argument of the first-party plaintiff on a different premise is without merit.

B) Whether there was a conclusive declaration of intention to refuse performance

According to Eul's statement, on March 21, 2007, the Austria decided to acquire the right to collateral security on the non-party 2 and the non-party 3's real estate of this case, together with the real estate of this case, at KRW 1.5 billion on June 15, 2007, to pay the down payment of KRW 1 billion on the non-party 20,500 million on the non-party 2 and the non-party 3, and to pay the balance of KRW 1 billion on the disposal of the above property, and it is recognized that the Austria agreed to receive the registration of transfer of ownership upon the payment of the above purchase price. However, it cannot be readily concluded that the Austria expressed its intent to clearly refuse to perform the obligation to transfer the ownership to the real estate of this case by disposing of the above real estate of this case and to pay the balance to the non-party 2, etc.

C) Whether liability for damages arising from delay of performance has been established

Inasmuch as there is no evidence to acknowledge that the UNTcom deposited 89,905,469 won as the deposited person, the Plaintiff’s assertion on this part is without merit, which is premised on the delayed performance of the obligation to transfer ownership of the instant real estate in relation to the payment of the above amount to the Poscf for the Poscf’s Poscf’s Poscf’s Poscf.

B. Preliminary Claim

1) The assertion

Even if the obligation to register the transfer of the above ownership was impossible without any cause, under the sales contract of this case, the Austria is obligated to return the above amount and the legal interest equivalent to the above amount and the damages for delay as the total amount of 2,939,082,950 won, and the legal interest equivalent thereto, collected from TPP to 4350,000,000 won, which was received as part of intermediate payment on March 8, 2004 pursuant to the sales contract of this case, as part of the above amount, and the amount of 1,939,082,950 won, and the amount of 524,082,950 won, which were collected as the remainder of the amount under the pretext of intermediate payment, and the amount of damages for delay from 2,939,082,950 won, and the legal interest equivalent to the above amount. Accordingly, the Plaintiff is obligated to return the above amount and the legal interest equivalent to the above amount of 1,980,00,00 won to 2714.7.7.200.

2) Determination

A) Whether the lawsuit seeking confirmation of bankruptcy claims in this part is legitimate

The supplementary intervenor asserts that the conjunctive claim seeking confirmation of the claim for return of unjust enrichment among the instant lawsuit is unlawful since the Plaintiff’s conjunctive claim is a claim that was not reported as a bankruptcy claim in the bankruptcy procedure.

However, it is not allowed to seek confirmation of the initial reported claim and its cause separate from the fact in the bankruptcy claim confirmation procedure. However, it is reasonable to view that it is allowed to seek confirmation of the claim if it is a right evaluated as an socioeconomic identical claim even if the legal nature of the claim differs from that of other creditors even if it is different from that of other creditors, and it does not substantially infringe upon the right of objection of the bankruptcy trustee or other creditors (see, e.g., Supreme Court Decision 2004Da51542, Apr. 12, 2007). In light of the overall purport of the arguments as seen above, the Plaintiff’s claim for confirmation of the same claim as the above in the bankruptcy claim declaration period, and thus, it is not allowed to seek confirmation of the claim’s non-performance claim based on the legal reasoning that the Plaintiff’s claim for confirmation of the non-performance claim and the non-performance claim based on the non-performance claim based on the non-performance claim and the non-performance claim based on the non-performance claim and the non-performance claim.

B) The occurrence and scope of return of unjust enrichment

(1) Article 537 of the Civil Act provides that "if an obligation of one of the parties to a bilateral contract becomes impossible to be performed on any ground for which neither of the parties is responsible, the obligor may not demand performance of the other party," thereby adopting the obligor risk principle. If an obligation cannot be performed on a bilateral contract without any cause attributable to both parties, the obligor is exempted from the obligation to perform the obligation and may not claim any benefit in return. Therefore, if both parties did not have any benefit, the contractual relationship is extinguished, and the performance already performed may be claimed for return in accordance with the legal principles of unjust enrichment (see, e.g., Supreme Court Decision 2008Da9865, 98662, May 28, 2009).

(2) As seen earlier, the instant real estate cannot be deemed to be a cause attributable to the Austria because it became impossible to perform the obligation to transfer the ownership of the instant real estate due to the bid at the CF on November 28, 2007 at the auction procedure. Meanwhile, as long as there is no evidence to acknowledge that the Austria provided its obligation to transfer the ownership of the instant real estate, the obligation to pay KRW 89,905,469 to the Posco of the Posco in the concurrent performance relation is not in delay, and as seen above, the instant real estate cannot be deemed to be a cause attributable to the Posco in the auction procedure, even if it was impossible to perform the obligation to transfer the ownership of the instant real estate due to the overlap of the compulsory auction procedure at the request of Nonparty 2, the creditor of the instant real estate, and the voluntary auction procedure at the request of the Young Mutual Savings Bank, the obligation to transfer the ownership of the instant real estate cannot be deemed to be a cause attributable to the Posco.

Therefore, according to the above legal principles, the Pocco retired from its own debt and at the same time lost its opposing claim amounting to the amount of KRW 89,905,469, which is the creditor, including the claim for reimbursement of KRW 89,905,469, and the claim for payment of KRW 435,000,000,000,000 in lieu of the payment of KRW 435,000,000,000 under the sales contract of this case, and the claim for the return of the deposit amount of KRW 235,000,000,000,000,000 won in lieu of the payment of KRW 865,00,000,000,000,000,000,000,000,000,000,000,000,00,000,00,00.

(3) Furthermore, the Plaintiff asserted that the Austria acquired the instant balance amounting to KRW 865 million with the claim against the Dlimland, etc., which was acquired by the Austria in lieu of the instant balance amounting to KRW 865 million, by collecting KRW 1.98 billion from the Dlimland, and KRW 524,082,950, and the amount equivalent to the said collection amount was unjust. However, there is no evidence to acknowledge the Plaintiff’s aforementioned assertion (in relation to the collection of KRW 1.980,000,000,000,000,000). However, in full view of the purport of the argument in Gap’s oral proceedings, the Austria transferred the claim amounting to KRW 4.3 billion against the Dlim, which was acquired from the UNcom, around August 2004, to the Hackland, and the above Hackckton received approximately KRW 1.98,00,000,00). This part of the Plaintiff’s assertion is rejected.

(4) If so, the plaintiff acquiring the claim for return of unjust enrichment equivalent to the amount equivalent to the above sales price paid for the Posckn's Posckn's Posckn's 1.3 billion won against the defendant, shall have the legal interest or delay interest calculated at the rate of 6% per annum from November 28, 2007 to November 29, 2009, calculated at the rate of 156,641,095 won (1,30,000,000 x 0.06 x 73/365,000 won x 06 x 73/365,000 won, hereinafter the same shall apply) calculated by the plaintiff from the next day to March 11, 2010 x 6% interest under the Commercial Act from November 28, 2007 to the day immediately preceding the bankruptcy declaration of Posckn's x 3060,7000 won

C) Defendant’s defense of offsetting

The defendant, on September 12, 2001, has caused damage equivalent to the market price by letting Austria lose its rights to the above shares by offering B&C arbitrarily offered 80,000 common shares of the T&C, which were kept in the ViTcom as a collateral to the Korea Exchange Bank without the consent of the T&C. Thus, even if the C&C permitted the C&C to provide the above shares as a collateral, the C&C is liable for damages due to default or tort, and even if the C&C consented to provide the above shares as a collateral, the C&C is entitled to exercise its right to indemnity against the C&C pursuant to Article 341 of the Civil Act as a surety, and there is no need to acknowledge the defendant's claim or indemnity against C&C as a collateral, and there is no need to acknowledge the amount equivalent to 30,400,000,000 won or more as at October 18, 201 to pay the above shares as collateral x 3400,301,4000.

4. Conclusion

Therefore, the plaintiff's claim for the return of unjust enrichment of KRW 1,456,641,095 ( KRW 1,300,000 + KRW 156,641,095) against Pstcop as a general bankruptcy claim, and the claim for the return of unjust enrichment of KRW 21,797,260 as a subordinate bankruptcy claim. Thus, the plaintiff's conjunctive claim among the plaintiff's claims that were changed in exchange in the trial at the trial is justified within the extent of the above recognition, and all of the main claim and the remainder of the conjunctive claim are dismissed as it is without merit. It is so decided as per Disposition.

Judge Lee Gyeong-sck (Presiding Judge)