2013Na20282 Delivery of Ccorporeal Movables

Corporation A

Essung simuls

Place of service

Representative Director;

Attorney Lee Young-young, Counsel for the defendant-appellant

Administrator C of the Debtor Rehabilitation Company MU

Pohang-si

Place of service

Law Firm Barun, Attorney Park Jong-soo, Counsel for defendant

Attorney Lee Tae-tae

Daegu District Court Decision 2012Gahap1363 Decided February 8, 2013

January 8, 2014

February 5, 2014

1. The plaintiff's appeal is dismissed.

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

The judgment of the first instance is revoked. The defendant shall deliver to the plaintiff the movables listed in attached Form 1.

1. Basic facts

The following facts may be acknowledged, either in dispute between the parties, or in full view of the descriptions of Gap evidence of subparagraphs 1 through 8, Eul evidence of subparagraphs 1 through 5 (including the numbers when they are not specially indicated; hereinafter the same shall apply) and the whole purport of pleadings, and there shall be no counter-proofs:

A. On January 17, 2011, the Plaintiff and M Co., Ltd. (hereinafter referred to as “M”) manufactured and supplied the instant movable property to M. M. M by dividing the amount of KRW 2332 million (including value-added tax) by August 201, as set out in attached Form 2, and paid the Plaintiff the amount of the purchase and delivery contract for the instant movable property (hereinafter referred to as “the instant movable delivery contract”) with the purport that “the ownership shall be owned by the Plaintiff before the payment is made.” The main contents are as shown in attached Form 2.

B. On January 18, 201, pursuant to the supply contract of the instant movable property (Article 10(3)), the Plaintiff and M&D drafted an authentic deed of a transfer-transfer-based contract containing the following: “If M/D fails to perform the obligation to pay the installment payment of the instant movable property, the Plaintiff shall immediately be subject to compulsory execution against the instant movable property, even if they are subject to no objection.”

C. On March 18, 201, the Plaintiff: (a) supplied the instant movable property to the 213rd Ma, Yangnam-si, which was designated by M on March 18, 201; (b) completed a trial run; and (c) has been occupied by M and used for business until now.

D. M paid to the Plaintiff KRW 30 million on January 17, 201, KRW 40 million on April 25, 2011, KRW 90 million on June 2, 2011, and KRW 20 million on June 2, 2011, but did not pay the remainder KRW 143.2 million on the said notarial deed. The Plaintiff filed an application for compulsory execution against the instant movable property under the Daegu-gu method racing support 201.599 on October 10, 201.

E. While compulsory execution procedures for the instant movable property were underway, Magu District Court filed an application for rehabilitation with Magu District Court. On November 22, 2011, Daegu District Court rendered a decision prohibiting compulsory execution, provisional seizure, provisional disposition, or provisional disposition based on rehabilitation security rights under the same court No. 2011hap49, supra, the compulsory execution procedure for the instant movable property was suspended.

F. On December 21, 201, the Daegu District Court rendered a ruling of commencement of rehabilitation against M on December 21, 201 and appointed the Defendant as a custodian. On October 15, 2012, the Defendant’s rehabilitation plan was included in “the rehabilitation secured creditor, the principal of the rehabilitation security right, the amount of KRW 182,00,000,00 for the principal of the rehabilitation security right, the movable property of this case for the purpose of rehabilitation security right (evaluation amount of KRW 143,902,00), the Si’s amount of KRW 143,902,00,000 for the object of rehabilitation security right (evaluation amount of KRW 38,09,000 for the denied amount of KRW 38,098,00 for the amount of excess value as the rehabilitation claim.”

2. The parties' assertion

A. The plaintiff's assertion

The Plaintiff made it clear that the ownership of the instant movable property belongs to the Plaintiff before full payment of the price of supply was made on January 18, 201, with the aim of securing the payment of the price of supply when concluding the instant movable delivery contract with M.

The plaintiff, upon commencement of the rehabilitation procedure for M, has the right of the right of the re-transfer of the movable in this case. Thus, the defendant, who is the administrator of M, has the intention to deliver the movable in this case to the plaintiff as the right of the re

B. The defendant's assertion

1) Since the Plaintiff’s claim for the supply of movable property in this case against M was already approved as the rehabilitation security right and rehabilitation claim from the rehabilitation court on October 15, 2012, which occurred due to the cause before the rehabilitation procedure against the Defendant begins, there is no benefit in the lawsuit seeking delivery of movable property in this case as the lawsuit in this case, separate from the rehabilitation procedure.

2) As stipulated in the instant movable delivery contract, M may gratuitously use the instant movable until all of the obligations for the delivery of the instant movable property are repaid and the ownership is transferred from the Plaintiff (Article 9). Since the instant movable delivery contract has not yet been legally rescinded, the Plaintiff cannot seek the delivery of the instant movable until M fully pays the instant movable property.

3) Even if the instant movable delivery contract was lawfully rescinded, the Plaintiff is not entitled to seek delivery of the instant movable property against the Defendant, on the ground that the Plaintiff only has the status of rehabilitation secured creditor within the rehabilitation procedure pursuant to the contract for the solicitation of possession, and the status of the holder of the right of repurchase is not recognized.

4) The instant movable property is an inferior equipment for the tinsan Development Business, which is the core business of M, and it is not permissible to recover the instant movable property in order to secure the price of the undeveloped-water supply since it constitutes abuse of rights.

3. Determination on the defense prior to the merits

According to the evidence Nos. 1 and 2 as to whether the lawsuit of this case had no benefit in the lawsuit due to the decision to commence rehabilitation proceedings against the defendant, it is acknowledged that the decision to commence rehabilitation proceedings against M was made on October 15, 2012, the defendant was appointed as the administrator, and the balance of the price of the movable property of this case against the plaintiff as the plaintiff as the rehabilitation security right or the rehabilitation claim is recorded as the whole in the rehabilitation plan approved by the rehabilitation court. However, according to the whole purport of the statement and arguments No. 7, the plaintiff asserts not as the cause of the claim of this case, but as the owner of the movable property of this case, the plaintiff claims the right to exercise the right to repurchase on the premise that the plaintiff is the rehabilitation secured creditor or the rehabilitation creditor, and Article 70 of the Debtor Rehabilitation and Bankruptcy Act (hereinafter referred to as the "Bankruptcy Bankruptcy Act") does not necessarily affect the right to repurchase any property that does not belong to the debtor.

Therefore, the defendant's prior defense on the premise that the exercise of the right of repurchase should be based on the rehabilitation procedure is without merit.

4. Judgment on the merits

A. The nature of the delivery contract of the instant movable property

Where the content of a juristic act is prepared in writing between the parties concerned, if the objective meaning of the text is clear, the court shall recognize the existence of a declaration of intent and its content in the language, barring any special circumstances. In cases where the objective meaning of the text is not clearly revealed, the court shall reasonably interpret it in accordance with logical and empirical rules, general social norms, and trade norms, by comprehensively taking into account the contents of the relevant language, the motive and background leading up to the juristic act, the purpose and genuine intent to be achieved by the parties concerned through the rate of their acts, and transaction practices, etc. (see, e.g., Supreme Court Decision 208Da4368, Jun. 24, 2011).

On the one hand, the main contents of the instant movable delivery contract are, on the other hand, the reservation of ownership of the instant movable until the Plaintiff who is a seller pays in full, until the Plaintiff pays in full, and on the other hand, it is not clear whether there was any genuine agreement between the Plaintiff and M as to the instant movable delivery contract by providing M in the premise that the ownership of the instant movable is transferred to M, and on the other hand, it is not clear whether there was any genuine agreement between the Plaintiff and M as to the instant movable delivery contract. However, in full view of the following circumstances, it is reasonable to view that the instant movable delivery contract entered into between the Plaintiff and M as follows: (a) the Plaintiff’s reservation of ownership of the instant movable property until the price is paid in full; and (b) the Plaintiff’s exercise of rights based on the ownership reservation agreement or the ownership transfer agreement among the instant movable delivery contract cannot be deemed null and void due to any other one).

① Article 9 of the instant movable delivery contract explicitly states that when M pays all the price of supplied goods, the ownership of the instant Dongsan is transferred from the Plaintiff to M, the instant movable delivery contract is a kind of sale with ownership reservation.

② Under the premise that the ownership of the instant movable property is reserved to the Plaintiff, Article 10 of the instant movable delivery contract also provides that “M may use the instant movable property free of charge from the time of acquisition of the instant movable property to the time of transfer of ownership pursuant to Article 9.”

③ In entering into the instant movable delivery contract, the Plaintiff and M&A concluded an agreement with the Plaintiff to withhold the ownership of the instant movable property until the payment is made, as it is impossible to settle a large amount of price (including value-added tax of KRW 230,200,000) in lump sum.

④ Although Article 10(2) of the instant movable delivery contract states that “M shall ship the instant movable in this case to the factory after having conducted a notarized loan for consumption by means of security and a provisional disposition for corporeal movables,” Article 10(1) of the said contract states that “The Plaintiff shall ship the instant movable in this case to the factory,” the title of Article 10 is “loan for use and securing claims,” and that “M shall use the instant movable in this case by means of loan for use,” it does not intend to blank the ownership reservation agreement on the instant movable through the said deed of transfer for security, but rather, it appears that the Plaintiff added the right based on the provisional disposition for corporeal movable property or the deed of transfer for security to the extent that the execution of the claim for the supply of movable property was received more clearly and more convenient.

B. The plaintiff's status

Although the Plaintiff has both the rights based on the ownership reservation agreement and the rights based on the transfer for security to secure the payment of the price of goods in accordance with the instant movable delivery contract, it is reasonable to view that the Plaintiff cannot be recognized as the holder of the exchange right in the rehabilitation procedure for M for the following reasons, and has the status as a rehabilitation secured creditor.

1) The Plaintiff’s ultimate intent regarding the ownership reservation agreement in the instant movable delivery contract is not to continue to maintain the ownership of the instant movable property, but to secure the performance of the claim for the supply of goods, and M also intends to use and profit from the instant movable property as one’s own property after purchase, not to borrow the instant movable property from the Plaintiff. As such, as for the sale and purchase of the instant movable property, the ownership reservation agreement in the instant movable delivery contract has the substance of the security right to secure the claim for the payment of the amount of goods. Considering the practical aspect of the aforementioned agreement as well as the purport of the rehabilitation system, the procedure’s simplified speediness, and the characteristics that need to be adjusted at once, the Plaintiff’s right based on the instant movable delivery contract ought to be considered as the rehabilitation security right and be comprehensively resolved within the rehabilitation procedure.

2) In addition, even if the Plaintiff has both the right based on the ownership reservation agreement and the right based on the ownership transfer agreement, both parties conflict with each other in the exercise of ownership or exercise of rights (the exercise of ownership based on the premise that ownership is owned by the debtor or a third party). According to the facts acknowledged earlier and the overall purport of the evidence Nos. 4-2, 4, 5, 8, and 1 through 4, the Plaintiff, upon delay in the payment of the installment for the supply price, proposed a compulsory execution in accordance with the notarial deed of the transfer security agreement, where the payment of the installment for the supply price is delayed due to the delay in the payment of the installment for the supply price, the Plaintiff applied for compulsory execution in accordance with the notarial deed of the transfer security right to the instant movable property, and the Plaintiff applied for the rehabilitation security right to the instant movable property, not the right to claim the delivery of the installment for the payment of the delivery price for the delivery price for the instant movable property, but the rehabilitation security right to the instant movable property, and the Plaintiff applied for the rehabilitation security right to the instant movable property.

C. Sub-decision

As seen earlier, the Plaintiff is merely holding a rehabilitation security right for the instant movable property. As such, the Plaintiff’s assertion premised on the holding of a right to repurchase is without merit without examining any further.

5. Conclusion

Therefore, the plaintiff's claim of this case shall be dismissed as it is without merit, and the judgment of the court of first instance is just, and the plaintiff's appeal is dismissed as it is without merit, and it is so decided as per Disposition.

Gangwon-do (Presiding Judge)

Freeboard Kim

The grandchildren Hospital; and

Attached Table 1

Indication of Movables

A person shall be appointed.

Attached Table 1

The main contents of the instant movable delivery contract

* Basic elements of contract

· Contract amount: 212,00,000 won (23,200,000 won including value-added tax)

· Terms of payment

Contract deposit: 30,000,000 won (payment on January 17, 2010, due date, May 30, 2010)

Balance: 182,00,000 won

(32,00,000 won as of the end of March, 300, 30,000 won as of the end of April.)

(30,000,000 won for the end of May, 30,000

(30,000,000 won for the end of July, 30,000

· Date of payment: February 15, 201 (in the case of delivery as soon as possible)

· The place of construction: Yang-nam, Gyeong-ri 213

* General Terms and Conditions of Contracts

Article 3 Payment of Price

(1) The plaintiff, after passing a completion inspection of M, remove or remove surplus materials, waste materials, temporary facilities, etc. immediately after passing the completion inspection of M.

Any balance may be settled at the construction site and filed with M. for the payment of the balance.

(2) M shall pay the price for construction simultaneously with the delivery of the object of the contract, unless otherwise stipulated.

(3) Where M fails to pay the construction cost by the due date, M shall not pay such unpaid amount.

The number of days from the date following the due date to the date of payment to the date of general loans of commercial banks;

The interest calculated by applying the interest rate in arrears shall be paid.

Article 9 Transfer of Ownership

① The ownership of this article is against M when M fully pays the price for the goods under Article 3 to the Plaintiff.

shall be transferred.

(2) Where the price of goods is not fully paid without any special reason after the completion of construction works, M shall be all supplied.

Where goods are suspended from use and are transferred to the Plaintiff, and the goods transferred by the Plaintiff are voluntarily removed.

It does not raise any objection and actively cooperate.

Article 10. Loan for Use and Securing of Claims

1 M shall be entitled to take over this goods and use them free of charge prior to ownership under Article 9.

(c)

(2) M shall be used after being installed in a factory of M, and sale to others and creation of a security interest therein.

shall not take any other action.

③ M is a monetary loan for consumption for the goods to the Plaintiff until the settlement is completed (in the case of a bill of commitment, cash settlement).

The expenses required for shipping security and disposal of corporeal movables to the plaintiff's factory after the transfer is notarized and disposed of.

shall be borne by M.

Article 11 Cancellation of Contracts

(1) omitted.

(2) In the following cases, the Plaintiff is naturally rescinded this contract without having expressed his intention of discharge, etc. to M.:

section 3.

1. When the transaction of a bank is suspended due to the refusal to pay promissory notes or shares per unit issued and accepted by the plaintiff;

2. When the payment of price is not performed as stipulated in the contract, or is delayed for not less than three days.

3. Where M has received a disposition by public authority.

4. to 5. Omitted