2013. Gohap8780 Liability

In depth 00

Attorney Shin Jae-han, Counsel for the defendant-appellant

Attorney Kim Il-sung, Counsel for the plaintiff

1. Fixedness;

2. Fixedness;

3. C:

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[Defendant-Appellant] Plaintiff 1

[Defendant-Appellant]

July 24, 2014

August 21, 2014

1. The instant lawsuit shall be dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The defendants pay to each plaintiff 187,383,300 won with 20% interest per annum from the day following the delivery of a copy of the complaint of this case to the day of complete payment.

1. Basic facts

A. The Plaintiff, with the trade name of the racul processing and machinery manufacturer industry, made and supplied machinery to A (hereinafter “A”) and did not receive the price of the goods of KRW 219,739,00 by October 204. The company supplied machinery parts, etc. to A and did not receive the price of the goods, including the Plaintiff. The 64 companies that the above 64 companies did not receive the price of the goods from A are total 2,462,196,102.

B. 64 companies, including the Plaintiff, constituted a claim group (hereinafter referred to as the "claim group of this case"). A, with respect to the obligation of 2,462,196,102 won of the above unpaid goods, the obligation of 2,462,196,102 won, is to provide the claim group of this case with all parts and materials in a factory and intellectual property rights (a refrigerer system using a signator) as security for transfer, and the claim group of this case allowed A to use parts and materials as security for the mechanical manufacturing of A, but agreed to receive the claim of the claim group of this case from the profit of A. The representative of the claim group of this case and the defendant, as a notary public on November 16, 204, prepared a notarial deed of debt repayment by means of security for transfer (hereinafter referred to as the "notarial deed of this case"), and the following contents are included in the notarial deed of this case:

Article 17(1) of the Act confirms that the instant case is made up for the repayment of the amount of the delayed payment, etc. of all the claims that are traded with the △△△△△△△△, and that the said claims shall be made out by the creditor as the representative of the claim group for the convenience of the contract. The list of the entire claims and the amount of the claims held by them are as follows: (a) the creditor promises to pay immediately in proportion to the amount of the claims of the entire claims group immediately after the receipt of the claims; and (b) the debtor and the joint guarantor (AAA, e.g.,

C. In order to establish and implement a debt repayment plan for the bond group, the head of this Do, A, the head of this Dong, but did not follow the plan due to attachment, auction, etc. after A’s default, the head of this Do, established B Co., Ltd. (hereinafter “B”) on December 21, 2005 and decided to repay the debt of the bond group, and the bond group dispatched the Defendant due B B to the administrator of the bond group.

라. 피고 정●●는 2007년 9월경 이 사건 채권단의 동의를 받아 자신이 직접 B을 경영하기로 하였는데 2010. 9. 1. B과 기업형태와 내용이 실질적으로 동일한 피고 주식회사 C을 설립하였으며 그의 아들인 피고 정▲▲이 대표이사가 되었다.

E. From December 14, 2004 to February 7, 2005, A paid KRW 120,760,500 on three occasions, and KRW 150,00,00 on September 16, 2005, respectively. The bond group distributed to the Plaintiff KRW 10,76,610 on February 11, 2005, and KRW 13,374,000 on December 8, 2005. B paid KRW 100,00 to the bond group around September 2006, and the bond group distributed KRW 8,215,090 to the Plaintiff on March 15, 2007.

[인정근거] 다툼 없는 사실, 갑 제1 내지 4, 9 내지 12호증(가지번호 있는 것은 가지번호 포함, 이하 같다.)의 각 기재, 증인 이 , 이◆◆의 각 증언, 변론 전체의 취지 2. 원고의 청구원인

가. 피고 정●●는 원고를 포함한 채권단으로부터 위임받은 바와 같이 채권단의 양도담보물 자산 일체를 보관 및 관리하면서 A의 운영수익으로 원고 등에 대한 채무를 변제하도록 할 업무상 주의의무가 있음에도 불구하고, 이를 위배하여 자신의 아들인 피고 정▲▲과 공모하여 채권단의 양도담보물을 B을 거쳐 피고 주식회사 C로 이전하여 영업활동을 하는 배임행위를 저질렀으므로, 원고를 포함한 위 채권단과의 위임계약에 위배한 채무불이행에 따른 손해배상 책임과 불법행위에 따른 손해배상책임을 부담한다. 또한 피고 정▲▲은 피고 정의 배임행위에 적극 가담한 공동불법행위자로서 손해배상책임을 부담한다. 따라서 피고 정●●와 피고 정▲▲의 배임행위로 인하여 원고는 채권을 변제받지 못하였으므로, 채권액 상당의 손해배상을 청구한다.

B. Defendant C, as the amount equivalent to the mechanical price produced and sold by means of the collateral transferred property owned by the bond group, including the Plaintiff, was unjust enrichment, Defendant C, claiming the amount equivalent to the Plaintiff’s claim amount.

3. Determination on the legitimacy of a lawsuit

A. The Plaintiff’s claim against the Defendants is the cause of a claim for unjust enrichment as to the transferred property of the right group with default on the debt group and the unjust enrichment as to the transferred property of the right group. Ultimately, the Plaintiff exercises the Plaintiff’s right upon the instant claim. However, the Defendant asserted that the claim group constitutes a non-corporate group or a partnership under the Civil Act, and that there is no right to make the Plaintiff’s claim. Accordingly, the Plaintiff asserts that the claim group does not fall under a non-corporate group or an association under the Civil Act, and thus, the Plaintiff

B. In order for a non-corporate association to constitute "A" under Article 52 of the Civil Procedure Act, an association itself exists despite changes in its members, and it must be determined as a representative of the organization, operation of a general meeting, management of property, and other organizations (see Supreme Court Decision 92Da2431, Jul. 10, 1992). It is established by a contractual relationship under which two or more persons agree to engage in joint business by investing money or other property and labor among them, and it is difficult to view that the individual nature of the members of the association is of a non-corporate group that can be the subject of rights and obligations separately from the individual nature of the members, and it is more distinguishable from the non-corporate group that has a collective organization with a non-corporate organization for the purpose of collecting claims under the Civil Act (see Supreme Court Decision 9Da4504, Apr. 23, 199).

Thus, the right to claim damages and the right to claim restitution of unjust enrichment, which the plaintiff exercises in the lawsuit of this case, shall belong to all the members of the claim of this case including the plaintiff, and its exercise shall not belong to the act of preserving the partnership's property. Thus, the lawsuit against it shall be instituted by all the members of the association, or by an executive member upon voluntary litigation trust from the members of the association. The lawsuit of this case is unlawful

4. Conclusion

Therefore, we decide to dismiss the lawsuit of this case and decide as per Disposition.

The presiding judge, fixed-ranking judge

Judges' right not to affix a name or seal as a maternity leave;

Encouragement of Judge Creation

1)이 사건 공정증서 작성 당시에는 이◇◇이 채권단의 대표였으나, 현재는 원고 , 이DD, 이◆◆, 김□□, 피고 정●● 등 5인이

It is the representative.