Abandoned Automobile Co., Ltd. (Attorney Shin Jae-chul, Counsel for the plaintiff-appellant)

The bankruptcy trustee of a bankrupt company shall be the largest director in bankruptcy (Seoul General Law Firm, Attorney Lee Hy-soo, Counsel for the plaintiff-appellant)

November 3, 2004

Seoul Central District Court Decision 2001Gahap45756 Delivered on January 10, 2003

1.The judgment of the first instance shall be modified as follows:

A. The defendant:

(1) To transfer to the Plaintiff the bonds listed in the attached list No. 3;

(2) The non-party Scie Anonce Anonce de Prone de Prone, Address: Kmm. Km. 13 Km. Karj Roj Speci Rod, Tehwan, and Iran) sent to the Plaintiff the claims listed in attached Table 3 on the date on which the judgment of this case became final and conclusive.

B. The defendant shall be the plaintiff.

(1) US$ 4,059,321.36 and among them, US$ 3,707,404.99 shall be paid 6% per annum from May 31, 2003 to December 10, 2004; and 20% per annum from the next day to the day of full payment.

(2) If it is impossible to make payment or compulsory execution of the U.S. dollars under Paragraph (1) above, the said U.S. dollars shall be paid with money converted at the base exchange rate at the time of actual performance.

2. The plaintiff's remaining claims are dismissed.

3. The total costs of the lawsuit shall be divided into three parts, one of which shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

1. The purport of the claim (the amendment was made to the trial)

A. The defendant:

(1) To transfer to the Plaintiff the bonds listed in attached Table 2 list;

(2) The non-party Scie Anron Anonce de Prone de Prone, Address: Kmm. Km. 13 Kaj Speci Rod, Tehwan, and Iran) notify the plaintiff that the claims listed in attached Table 2 were transferred to the plaintiff on the date on which the judgment of this case became final and conclusive.

B. The defendant shall be the plaintiff.

(1) US$ 3,822,067 and interest thereon shall be paid at the rate of 6% per annum from July 15, 2001 to May 31, 2003 and at the rate of 20% per annum from the following day to the date of full payment.

(2) If it is impossible to make payment or compulsory execution of the U.S. dollars under Paragraph (1) above, the said U.S. dollars shall be paid with money converted at the base exchange rate at the time of actual performance.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Facts of recognition;

The following facts are not disputed between the parties, or can be acknowledged by adding the whole purport of the pleadings to the statement in Gap-1 and 9, and the testimony in non-party 1 of the court below's witness.

A. Conclusion of an export basic contract

(1) On November 29, 1992, the Plaintiff entered into a basic contract for the export of vehicles manufactured by the Plaintiff, with the Non-Party Soon Anibol loan (hereinafter referred to as “private wave”) which is a corporate Non-Party Soon Anibol (hereinafter referred to as “Sabol”) and the franchise produced by the Plaintiff.

(2) The main contents of the above basic export contract are as follows: (a) the Plaintiff exports the set of parts of the Radd motor vehicle to the Gadd motor vehicle - Rod-Cown (which is not the complete vehicle, all parts that can be assembled with one motor vehicle) method; (b) provide all technologies necessary for the industrialization of the Gad motor vehicle; and (c) provide all technologies necessary for the industrialization of it; (d) the export price determination (Article 33); (e) the order (Article 36); (e) the terms and conditions of payment (Article 40); (e) technical transfer and support (Articles 22 through 29); and (e) the Gad motor service (Article 47).

(3) In addition, Article 36(10) of the above basic export contract provides that the Plaintiff may designate a trade company in order to facilitate the export business, and the designated trading company shall carry out all export orders including the issuance of the letter of credit, and the inter-suries shall carry out the orders of the imported goods and the settlement of the price through the designated trading company. The reason why these provisions are established is that even at the time, the political situation was very unstable due to the war with knife, and that the Plaintiff needs to use the general trading company for maintaining the smooth export relationship with knife and recovering the price due to the lack of the information.

(b) Conclusion of a contract for the supply of goods for export;

Pursuant to Article 36 of the above basic export contract, the plaintiff first designated Ngumen, a famous general trading company in Japan, and exported to Sgumens. However, the plaintiff waived his business due to the lack of his economic condition, and the plaintiff was trying to negotiate with the neglected company prior to bankruptcy (hereinafter "Sgumen"). At the time of neglect, the company was holding a local office in Eul as well as the domestic trading company as the domestic trading company was maintaining its own company or its office in the process of joining the local company or its office with the war between Eul and C, and even as the general trading company was maintaining its office only as a domestic trading company, the information ability about the Eul's economic and political situation was outstanding, and even in Eul's reorganization, the plaintiff was also likely to obtain considerable trust. Accordingly, around 193, the plaintiff designated the exclusive trading company with respect to the export business of this case as a trading company and concluded the contract of this case as the following goods to supply the goods as the main product of this case.

(1) Article 1: The plaintiff designates a neglected company as a window for export of the Rad's export that is scheduled to supply the Rad's wave, and the neglected company shall act on behalf of the plaintiff and faithfully perform the role of the exporter.

(2) Article 2: The volume may be adjusted by mutual consultation with the Plaintiff after gathering of opinions and opinions in accordance with changes in circumstances, such as the settlement of export price.

(3) Article 3: In principle, the neglected company shall notify the plaintiff of the volume to be produced in the following month on or before the fifth day of each month, but the plaintiff shall, upon the request of the neglected company for production, adjust the volume in consultation according to the circumstances, and deliver it to the designated place by the neglected company.

(4) Article 4: The settlement of the price between the Plaintiff and the neglected company shall be based on the letter of approval for purchase, and the neglected company shall pay the price for the goods to the Plaintiff immediately after four shipping documents (NEGO).

(5) Article 5: The plaintiff shall pay the export fees agreed upon to the neglected company for the implementation of this Agreement and the export contract, and all other export expenses shall be borne by the neglected company. If there is any cost to be borne by the neglected company, the neglected company shall, in advance, pay it in advance to the neglected company's expenses in consultation with the plaintiff, and the plaintiff shall settle the amount of such payment to the neglected company within 20 days from

(6) Article 6: A neglected company, as an exporter under this export contract, shall have all the obligations and responsibilities for the performance of obligations, obligations, and exports, and the Plaintiff shall guarantee that there is no defect with respect to the franchise motor vehicle parts supplied, and shall resolve the problem at the time of the occurrence of the defect.

(c)the performance of exports and the occurrence of payments for exports to a frequency between neglected trading companies;

(1) Under the above contract for the supply of goods for export, the company neglected to export the franchise components produced by the plaintiff to the sect, and paid the remainder remaining after deducting the export commission agreed with the plaintiff (3.5% until April 1996, and 3% thereafter) from the export price to the plaintiff, but the sect did not pay to the plaintiff the balance of USD 9,422,030.37 as stated in the attached Table 1 among the obligation for the import of the automobile components imported from the neglected company from July 1997 to October 198, 198, among the obligation for the payment of the import of the automobile components imported from the neglected company, the export price of this case was settled by the credit, but the government did not pay by telegraph the excess of the limit in accordance with the limit for the issuance of the credit issued by its company.

(2) With respect to the increase or adjustment of export price, determination of order volume, issuance of L/C (L/C) in relation to the above export, etc., the Plaintiff and the parties to the dispute directly agreed with each other. On March 28, 1998 and March 29, 198, the Plaintiff demanded that the Plaintiff pay interest on the claim for the difference in the price due to the difference between the Plaintiff, the succeeding company, and the inter-party 3, who were held in both days on March 28, 1998, but the parties did not comply with such demand but did not reach an agreement.

(3) In addition, while non-party 2 of the Plaintiff Company was unable to pay 4 L/C bills (credit No. eX0697703470, EX06770777, EX069708, EX0697703968, EX06970703487), the L/C issuing bank, which is the L/C issuing bank of M/C, the L/C issuing bank of M/C, the non-party 2 of the Plaintiff Company was able to receive the L/C payment through two branches of M/C (Bk M&I DoB Douba Doub-Ban). However, the Plaintiff Company's non-party 2's non-party 3 participated in the negotiation of M/C at the two branches of M/C but did not purchase the above 3% amount after consultation with the above three branches of M/C at the two branches of M/C.

(d) The occurrence and reversion of exchange loss and exchange marginal profits;

The price for the parts of the automobile between the Plaintiff and the neglected company was paid in Korean won, and the export price for the parts of the automobile was paid in US dollars between the neglected company and the neglected company. As a result, the neglected company caused exchange losses or exchange profits due to the difference between the exchange rate at the time of customs clearance of the said goods and the rate of exchange at the time of the settlement of the price difference between the neglected company and the neglected company (NEGO). While the difference between the exchange rate at the time of customs clearance of the said goods or between the floating company and the exchange rate at the time of the settlement of the price difference, in the beginning of the export of this case, the exchange losses or exchange profits arising in relation to the above export were not a separate problem, but the Plaintiff and the neglected company agreed to compensate for the neglected company and the neglected company were paid by the Plaintiff from the neglected company. Accordingly, the neglected company notified the Plaintiff of the details each time of the refund losses or exchange profits to the Plaintiff with the consent of the neglected company, but neglected to receive the refund profits or exchange profits through a separate agreement on the redemption profits (30.

(e) Bankruptcy of a neglected company;

On May 23, 200, a neglect company was ordered to commence a company reorganization procedure in the Seoul District Court on November 29, 200, and the abolition decision was made on November 29, 200, and on December 15, 200, the above abolition decision became final and conclusive and was simultaneously declared bankrupt.

2. Determination:

A. The nature of the contract for the supply of the goods for export of this case

The purpose of this case is to examine whether the contract for the supply of goods for export of this case is a delegation contract with terms of consignment or general goods sales contract.

As seen above, the basic export contract of this case was concluded between the plaintiff and the plaintiff. While there were comprehensive and detailed provisions regarding the determination of export price, order, terms and conditions of payment of price, technology transfer and support, and pet service, there were no special export-related general contract between neglected commercial parties, and the basic export contract of this case includes the contents that the plaintiff designates a trade company for export as an agent. ② The contract for the supply of goods for export concluded between the plaintiff and neglected commercial parties includes the name of the contract for the supply of goods. The contract for the supply of goods for export concluded between the plaintiff and neglected commercial parties includes the contents that the company pays the price for the goods to the plaintiff (Article 4). However, it is clear that the company neglected its duty to pay the price for the goods to the plaintiff as an export counter for the strike of the plaintiff (Article 1). The contract for the supply of goods is not a part for export to which the plaintiff neglected to pay the export fees agreed upon to the plaintiff (Article 5). ③ The contract for the supply of goods with the plaintiff's neglect to pay the price for export due to the plaintiff.

(b) Occurrence of the relevant right of repurchase;

Therefore, a neglect company is not the buyer of the instant truck parts for export, but the commission agent, and thus, the said truck parts for export are owned by the Plaintiff and the neglect company. Meanwhile, prior to the declaration of bankruptcy by the neglect company, the said vehicle parts were transferred to the intersect. Thus, barring any special circumstance, the Plaintiff may request the transfer of the claim corresponding to the consideration in attached Table 1.

C. Defendant’s assertion

In this regard, the defendant, since he did not pay taxes from 1995 to 1998 to the Government of "B", the government, around July 15, 2001, in order to collect the amount in arrears of 30,377,791,874, had the government forced to collect the amount in USD 3,82,067 among the claims listed in the separate sheet No. 1, and accordingly, the above amount in the bonds listed in the separate sheet No. 1 had already been extinguished, and therefore, it is argued that the transfer cannot be claimed.

Since July 15, 2001, in order for a company neglected to pay taxes to the Government from 1995 to 1998, in order for the Government of “A” to collect the amount in arrears of USD 30,377,791,874 from the amount in arrears, the Government of “A” forced to collect the amount in USD 3,82,067 from among the bonds listed in the attached Table 1’s attached hereto. Accordingly, the above amount in the bonds listed in the attached Table 1’s attached hereto is not a dispute between the parties, and therefore the above assertion by the Defendant is reasonable

D. Demanding return of unjust enrichment

If a claim equivalent to the above amount was extinguished among the claims listed in the attached Table 1 list, the bankruptcy estate of the neglected company would result in the payment of the debt that it should have borne by the plaintiff with the claim to be transferred to the plaintiff, and as the plaintiff suffered a loss equivalent to the above amount, the bankruptcy estate of the neglected company would be deemed to have obtained unjust enrichment equivalent to the above amount. Since the plaintiff's right to claim for return of unjust enrichment has arisen against the bankruptcy estate of the neglected company after the declaration of bankruptcy, the defendant is obligated to pay the above amount to the plaintiff.

(e) Deduction of fees and dividends;

The defendant asserts that since the plaintiff paid 3% of the price of the goods to the neglected company with the fee, the amount equivalent to the fee should be deducted from the price of the goods, and that the plaintiff participated in the distribution and received 82,397,580 won as a bankruptcy claim as a bankruptcy claim, such deduction should also be made.

The fact that the plaintiff paid 3% of the price of the goods to his/her neglected company as commission was acknowledged as above. It is acknowledged that the plaintiff received 49,946,141 won as bankruptcy claim on April 29, 2002 (US$ 1293, US$ 38,628.10, US$ 32,451,439 (US$ 1,1205.5, US$ 26,919.48,919.48) by participating in the distribution from the plaintiff's neglected company as commission, and the fact that the plaintiff received 32,451,439 won as bankruptcy claim on May 30, 2003 (US$ 1,1205.5, US$ 26,919.48).

Therefore, the Defendant’s claim to be transferred to the Plaintiff is USD 5,431,964.46 ($ 9,422,030, 030, 822, 067) as stated in the separate sheet No. 1 list, which remains after deducting USD 3,00 from USD 3,822,067, and deducting 3,000,000 from the remaining claims listed in the separate sheet No. 2 list No. 1 list. 0.97).

In addition, the defendant's unjust enrichment to be paid to the plaintiff is reasonable to dispute over the scope of the defendant's obligation to pay 3,707,404.99 (3,82,067 x 0.97) from July 15, 2001 to December 10, 2004, which is the date of the ruling in this case, 38,628.10 US dollars 3,707,404.9 US dollars 37,409,404.9 US$3636,979,96369,97.96.9,636.10 US dollars -69,9636.9,64.10 US dollars as principal -636.9,69,639,79,64.96.9,63 -6.196.94) -6.39,639,64.

3. Conclusion

Therefore, the defendant is obligated to transfer the bonds listed in the separate sheet 3 to the plaintiff and notify the plaintiff that he transferred the bonds listed in the separate sheet 3 to the plaintiff as of the final date of the judgment of this case. The plaintiff is obligated to pay 4,059,321.36 ( principal 3,707,404.99 + delay damages 351,99 + 351,916.37) and 3,707,404.9 ( principal 3,707,409) to the plaintiff, which is the principal from May 31, 2003 to December 10, 2004, which is the date of this decision, 6% per annum of the Commercial Act and 20% per annum of the special law on the promotion of Legal Proceedings, etc. from the next day to the date of full payment. If payment or compulsory execution of the above bonds cannot be made, the plaintiff's claim for payment of the above US amount converted to the exchange rate of the above US amount shall be dismissed within the remaining grounds.

[Attachment List]

Judges Lee Sung-sung(Presiding Judge)