(영문) 서울고등법원 2014. 11. 20. 선고 2014나8778 제17민사부 판결

The judgment of the first instance court shall be revoked. The defendant shall pay to the plaintiff 600,000,000 won with 5% per annum from February 13, 2007 to the delivery date of the copy of the complaint of this case, and 20% per annum from the next day to the day of complete payment.

Reasons

1. Basic facts

(a) Establishment, etc. of the B-Housing Association (hereinafter referred to as the “B-Housing Association”);

1) A B housing association was established on April 2003 with the purpose of implementing apartment construction projects on the ground other than Seosan-si.

2) After that, around April 19, 2003, B housing association concluded an implementation agency agreement with D Co., Ltd. (hereinafter “E Co., Ltd. at the time, but the trade name was changed on October 16, 2004; hereinafter “D”) and recruited members from around that time.

3) Around May 2003, the Defendant agreed to authorize the new apartment construction work to be executed by the B Housing Association, including the president of the B Housing Association and the first representative director of H and D, which will be implemented by the B Housing Association after the corporate reorganization procedure was conducted, but after the merger with the two Industrial Construction Co., Ltd., Ltd., the F Minister of F, May 6, 2004, referred to as the "Dudusan Industrial Development Co., Ltd., Ltd., and again to the two Construction Co., Ltd., the two two departments were changed to the two departments on March 16, 2007.

B. The Plaintiff’s investment, etc.

1) The Plaintiff was requested by I and G to cooperate in the purchase of the project site, and invested a total of KRW 398 million. On December 27, 2003, the Plaintiff received an apartment sale contract signed by HI and G as the president of the association of B Housing Association and HI and G respectively in order to guarantee the investment amount.

2) Since then, on June 29, 2004, B housing association prepared a letter of performance stating that the Plaintiff shall be paid KRW 400 million regardless of D, that the Plaintiff shall be paid KRW 500 million by February 28, 2005, that the Plaintiff shall be paid KRW 500 million by February 28, 2005 regardless of D, and that the payment of KRW 100 million by February 7, 2005 shall not be made by February 28, 2005.

C. Conclusion of construction contract and loan agreements between B housing association and the defendant

On August 14, 2003, the defendant entered into a contract for construction work of apartment (hereinafter referred to as the "contract for construction work in this case") with the housing association on August 14, 2003, and on August 18, 2003, the housing association lent 8.7 billion won (hereinafter referred to as the "first loan") with the remainder of purchase cost of the apartment project site to the housing association on August 18, 2003, and additionally lent 200 million won (hereinafter referred to as the "second loan") on September 8, 2003 (hereinafter referred to as the "loan"), and the provisions of the contract for construction work in this case and the loan agreement for securing the defendant's credit related to the above construction work are as follows:

/ A construction contract agreement

Article 11 (Employees and Employees)

2. The defendant shall be liable for the acts of his agent, employee, or worker.

Article 23 (Joint Management, such as Contributions to Members)

The members' contributions (including all revenues related to the project in relation to the proceeds from sale, such as the payment of cooperative members and commercial buildings, loans from financial institutions, deposit interest, overdue interest, and proceeds from sale of the exclusion site) shall be jointly managed by B housing association and the defendant as follows:

1. Until the B housing association pays the construction cost to the defendant, charges, etc. shall be established in the name of the B housing association, the defendant joint ownership, and the management unit of each joint seal impression, and the payment of down payment, intermediate payment, and remainder shall be made using the ON-LINE deposit account;

4. The joint passbook as provided in paragraph (1) of this Article shall be kept by the B Housing Association, and the seal impression for the joint passbook shall be kept by the B Housing Association and the Defendant, respectively.

Article 25 (Preservation of Claims)

1. B housing association shall not sell, exchange, donate, or otherwise dispose of the site of the construction site without obtaining prior written consent of the defendant after the conclusion of this contract, and shall not provide it as security by means of collateral mortgage, superficies, right to lease on a deposit basis, establishment of provisional registration, or any other means, and shall not make a provisional seizure, compulsory execution, or seizure disposition under the National Tax Collection Act;

section 50(3) of this title.

Article 34 (Handling upon Cancellation of Contract)

4. B housing association where a contract is cancelled or terminated due to a cause attributable to the defendant.

The defendant shall compensate for the loss incurred.

Article 37 (Loan)

1. The defendant shall be subject to the provisions of the following subparagraphs of loans to B housing associations in connection with this project:

It shall be supported, and the execution shall be jointly conducted by the B Housing Association and the defendant, and the separate loan agreement shall be concluded.

(a) Amount of loan: Not more than nine billion won;

2) Rental use: Land price for the project site;

(iv) Interest rate: 8.5% per annum;

m. Loan agreement

Article 4. Coverage of Claims

1. The preservation of claims against the loan shall provide the defendant with collateral security and superficies equivalent to the maximum amount of claims equivalent to 130% of the loan in respect of the project site;

2. The B Housing Association shall separately secure the Defendant’s loans in addition to the measures under paragraph (1) of this Article.

A promissory note of the B Housing Association, the face value of which is 130% of total loans, shall be provided to the defendant at the time of payment of loans by means of notarial acts after joint issuance with the guarantor.

(d) Execution of loans and establishment of a right to collateral security;

J, which had been the head of the Defendant F, had the Vice Minister of G, from August 18, 2003 to February 25, 2003, purchased the project site and set the first priority mortgage, etc. on the project site in order to purchase the project site in collaboration with B Housing Association, but the time is delayed in finding the props for the first loan of 2.43 billion won in the future.

On August 27, 2003, after the withdrawal of loans and purchase of the business site to D, an executor agency, performed the business of establishing the first priority collective security right in the future of the defendant. The I established the first priority collective security right in the name of the bond business operator who is not the defendant with respect to the business site purchased with the remaining first loan of the defendant.

(e) Authorization for establishing B housing association, recruitment of its members, etc.;

1) The B Housing Association recruited its members from October 6, 2003 to January 7, 2004 to residential residents in the Seosan area who are qualified to join the Association with the authorization of establishment on September 26, 2003, but did not recruit its members more than 650,000 won in total from 60,000 won.

2) Upon the I’s request on February 19, 2004, the B Housing Association decided to disburse the above KRW 100 million out of the above KRW 650 million as the price for church substitution. Accordingly, Defendant J withdrawn the above KRW 650 million with employees, etc. of the B Housing Association, and then paid the above KRW 100 million out of the said KRW 550 million as the cost for model parcels construction, and paid the remainder KRW 50 million to D as the price for church substitution, but I embezzled the above KRW 250,184,421 among them.

(f) the confirmation of relevant criminal cases;

1) In the above case, I and the Defendant J appealed the Daejeon District Court Branch Decision 2007Kahap19, 33 (Joint) and 59 (Joint) of the Punishment, etc. of the Specific Minor Offenses Act (Violation of the Act on the Punishment, etc. of the Specific Minor Offenses (Embezzlement) and against the Act on the Punishment, etc. of the Specific Minor Offenses (Embezzlement). On April 10, 2008, I and the J appealed the sentence of 3 years imprisonment and 2 million won. Accordingly, I and the J appealed appealed the sentence of 208No204 of the Daejeon High Court on February 5, 2009. The appellate court rendered a judgment of dismissal of the J's appeal was finalized on February 13, 2009.

2) Of the facts stated in the above judgment, the amount of approximately KRW 6.46 billion out of the Defendant’s primary loans was executed through the purchase of a business site, and KRW 2.43 billion remaining. around August 27, 2003, J paid KRW 2.4 billion out of KRW 5 billion to D’s employees for the same joint management account. The Defendant deposited KRW 2.5 billion in additional KRW 2.4 billion from September 8, 2003 to the above joint management account; KRW 2.5 billion from September 15, 2003 to KRW 2.4 billion from the above joint management account; and the Plaintiff deposited KRW 2.5 billion out of the total amount of KRW 2.4 billion from D’s official deposit account to KRW 2.5 billion from September 15, 2003 to October 21, 2003 to KRW 2.5 billion from D’s official deposit account.

(g) Liquidation, etc. of the B housing association;

1) The apartment construction project of a housing association had purchased the project site by acquiring bonds of high interest with the B housing association or D due to the shortage of funds, but failed to repay the bonds, which led the bond company to the auction, etc. of seven parcels out of the project site where the mortgage was created.

2) After the resolution of dissolution on April 15, 2006, B housing association paid 8,532,99,203 won of liquidation money, such as the disposal price of land owned in the course of liquidation, to creditors and members. The defendant, members, and some investors, including the plaintiff, received liquidation money, but most investors, including the plaintiff, did not receive liquidation money.

3) The Defendant received KRW 7,122,49,203 under the pretext of partial repayment of loans amounting to KRW 8.9 billion (=8.7 billion + KRW 200 million) out of the above liquidation amount.

[Basis] Evidence Nos. 1, 3, 5, Gap evidence Nos. 8 through 12, Gap evidence Nos. 16, 17, 20, Gap evidence No. 22, Gap evidence No. 28, Gap evidence No. 31-1, Gap evidence Nos. 32, 34, 35, 37, Eul evidence Nos. 1 and 3, the purport of the whole pleadings, and the purport of the whole pleadings

2. Judgment as to the plaintiff's primary claim

A. The plaintiff's assertion

1) According to the evidence of the Defendant’s overall transfer of KRW 8.9 billion to the B Housing Association prior to the authorization of incorporation during the company reorganization procedure, subparagraph 2 (a copy of court permission) cited by the Defendant was forged, and the above lending is null and void as it was conducted without the permission of the bankruptcy court. The above lending is substantially lent to the representative director of the E company, which is D prior to the time when the B Housing Association was not the B Housing Association.

2) Even if the Defendant’s loan claims are valid, the Defendant has the duty to jointly execute the joint management agreement with B Housing Association on the loans, the members’ contributions, etc. in violation of the joint management agreement with B Housing Association, and in violation of this obligation, the Defendant would allow D’s representative director to use KRW 2.430,80,000,000,000 paid around August 27, 2003 and KRW 650,000,000,000,000,000 paid around February 20, 2004 for personal use. Therefore, the Defendant is liable to compensate for the damages due to the nonperformance of the above amount in relation to B Housing Association, and the Defendant has the duty to supervise the Defendant to establish the first priority collective security right on the land for business purchased pursuant to Article 25 of the construction contract of this case. The Defendant neglected to establish the collective security right on part of the land for business use and sold part of the land for which the apartment construction was made to B Housing Association.

The liability for damages shall be the liability for damages.

3) Nevertheless, the Defendant’s receipt of KRW 7,122,49,203 out of liquidation money based on the loan claim of KRW 8.9 billion against the B Housing Association constitutes unjust enrichment against the B Housing Association. Therefore, the Plaintiff shall exercise by subrogation the right to claim restitution of unjust enrichment against the Defendant of the insolvent B Housing Association, who is a contractual creditor under the investment deposit of KRW 600 million against B Housing Association or the said performance statement of B Housing Association.

B. Determination

1) Whether a loan claim against the Defendant’s B Housing Association is null and void or nonexistent

A) Whether a lease was made without the court’s permission and is null and void

(1) When submitting or presenting a document to the court, the original, original, or certified copy shall be deemed to be an original, certified, or certified copy (Article 355(1) of the Civil Procedure Act). Thus, the submission of evidence by simple copies, other than the original, authentic, or certified copy, in principle, shall not be guaranteed accuracy. In particular, if there is a dispute over the existence of the original and the authenticity of the original, and there is an objection against the other party in regard to the substitution of the original, the copy shall not be substituted by a copy. On the other hand, if a copy is submitted as an original, the copy shall not be deemed to be an independent documentary evidence, but if the original is not deemed to have been submitted by this, the original shall not be deemed to have been the same as the original, and in this case, it shall be recognized that there is another original as having been the same as the original with evidence, and that the original has been duly established (see, e.g., Supreme Court Decisions 200Da6133, Aug. 23, 2002).

The plaintiff, with respect to the evidence Nos. 2(s)(s)(s)(s)(2)(s)(s)(s)(s)(3)(s)(s)(3)(s)(s)(4(s)(s)(s)(4)(s)(s)(s)(

In full view of the purport of the entire pleading in re- and video, the existence of the original is recognized [the third bankruptcy court of the Seoul District Court, which was the bankruptcy court of the Korea Industrial Development Co., Ltd., a telegraphic personality of the defendant, kept the original copy of the court permit concerning the corporate reorganization procedure, delivered the copy to the defendant, and accordingly, submitted the evidence No. 2 (the copy of the court permit) to the court of first instance as the original, as the defendant kept the copy];

(2) Article 356(1) of the Civil Procedure Act provides that when a public official is deemed to have prepared a document in the course of performing his/her duties in accordance with the method and purport of preparing a document, it shall be presumed as a genuine public document. Therefore, a document that appears to have been prepared by the public official in the course of performing his/her duties in view of the method and purpose thereof shall be presumed to have been prepared as a genuine public document unless there is any counter-proof evidence to deem that there is a special reason, such as forgery or alteration (see, e.g., Supreme Court Decisions 85Meu180, Jun. 10, 1986; 2003Da

In full view of the overall purport of the pleadings, evidence No. 4-6 to 9, which is the photographer of evidence No. 2 submitted by the defendant to the court of the trial, Eul No. 2, the document number No. 03-333, 2001, 2001, 300, 300, 300, 2000, 300:00, 400,000 won, 200,000 won, 20,000,000 won, 20,000,000,000 won, 20,000,00,000 won, 20,000,00,000 won, 20,000,00,000 won, 20,000,000,000 won, 20,00,000 won, etc., 30,000,00

In light of the method and purport of the written permission, it is presumed to be a genuine official document given that the managing members of the Korea Development Bank, which is the cause of bankruptcy law of the Korea Development Bank under the due process, are within the permitted scope delegated by the court, as follows.

The plaintiff asserted that the document No. 2 was forged with evidence No. 5 through 7, No. 2, No. 3, and No. 4-1 through No. 5 or 8; the seal No. 2 is without a judge’s seal No. 3; the seal No. 2; the seal No. 30; the seal No. 5428; the seal No. 200; the seal No. 208; the seal No. 2025; the seal No. 3; the seal No. 4; the seal No. 208; and the seal No. 206; the seal No. 200; the seal No. 208; the company No. 2020; the company’s company’s company’s company’s company’s company’s company’s company’s company’s company’s company’s company’s company’s company’s company’s company’s company’s company’s company’s company’s company’s company’s company’s company’s company’s company’s company’s company’s company’s company’s company’s company’s company’s company’s company’s company’s company’s company’s company’s company’s company’s company.

According to the evidence No. 5 (A copy of the official document issued by the court of bankruptcy and the form of the copy of the permit and the system, etc. received from the court of bankruptcy and the fact that the two are the two documents and the two documents, the evidence No. 2 appears to be the document duly formed.

(3) Therefore, the defendant lent KRW 8.9 billion to B Housing Association according to the permission of the court as above. Thus, the plaintiff's assertion on the premise that the above loan is null and void is groundless.

B) Whether the actual borrower is I

According to the evidence No. 8-1 through 4 of the evidence No. 8 and evidence No. 17, B housing association obtained authorization on September 26, 2003. The defendant's loan to B housing association was made on August 19, 2003 and September 8, 2003, respectively. The defendant's loan to B housing association was made on August 19, 2003, and the issuer (debtor) as D representative director I, B housing association President H and P to secure the payment of loan, and the issuer (debtor No. 8-2) was made on August 19, 203 as D representative director and B association President H, and the issuer was made on September 15, 2003 as association President, and the defendant's association's establishment authorization was made on September 15, 2003 under the following facts. The defendant's association's establishment authorization was made on a non-notarial deed (Evidence No. 8-4 of the evidence No. 8-2 and 4 of each legal act.

The borrower of the loan shall be the B Housing Association in full view of the following: (a) as measures to preserve loan claims under Article 4(2) of the Loan Agreement (Evidence No. 8-1 of the Evidence No. 8), the borrower of the loan shall be the B Housing Association in full view of the following: (b) the B Housing Association and the D’s representative director, who is an executing agent, jointly and severally issued a promissory note to secure the debt of the joint and several sureties; and (c) the borrower shall be deemed to have issued a promissory note to secure the debt of the loan to the defendant; and (d) the loan shall not take effect

2) Whether the B Housing Association has a damage claim against the Defendant

A) The fact that the Defendant and B Housing Association jointly operated the management account of loans, contributions, etc., and that if the Defendant purchased the business site due to the Defendant’s loan, the Defendant G employee G and J arbitrarily entrusted the head of the Tong, etc. to D and embezzled considerable amount of money among the Defendant’s loans or the contributions of the members of the Fund, and that the Defendant and B Housing Association set up the first-class collateral in the future of the bond company that was not the Defendant, instead of the Defendant, regarding the business site purchased with the loan.

B) However, in full view of the following circumstances revealed by the purport of the entire arguments as seen earlier, namely, the obligation to manage loans and the shares of association members as prescribed by the construction contract and loan agreement of this case by G and J, an employee of the Defendant, to preserve the Defendant’s construction price and the claims on loans. It is merely the obligation to the Defendant’s employee to pay to the Defendant. It cannot be deemed that the Defendant’s employee deals with part of the business for preserving the claims of B Housing Association or D, the executor of the apartment construction project of this case, and the establishment of the right to collateral for the payment of loans is also the Defendant’s own business for preserving the Defendant’s loans.

In light of the above, the B Housing Association cannot be deemed to have the damage claim related to the use of the amount of KRW 2.43 billion, which is part of the loan to the Defendant, and the amount of KRW 650 million for the Union members. Therefore, the Plaintiff’s assertion on this premise is without merit without further review.

3. Judgment on the plaintiff's conjunctive claim

A. The plaintiff's assertion

B Housing Association had a problem in the liquidation procedures, such as preferential payment of the Plaintiff’s contribution, without excluding the Plaintiff’s investment bond in the course of liquidation, and due to such a problem in the liquidation procedures, the Defendant obtained unjust enrichment by receiving the portion to be received by the Plaintiff exceeding the scope of the settlement money originally receivable.

B. Judgment as to the defendant's assertion of conflict with res judicata

The defendant asserts that the plaintiff's conjunctive assertion against the defendant is contrary to the res judicata effect of the previous case (Seoul District Court 2008Gahap6370, Seoul High Court 2009Na82307, Seoul High Court 2009Na82307). Thus, according to the evidence evidence Nos. 11 and 3, the defendant's claim concerning this part of the previous case can be acknowledged as a claim for damages on the ground that the defendant actually led to the liquidation of the B Housing Association while taking the lead in the liquidation of the B Housing Association. Meanwhile, this part of the claim in this case is that the defendant obtained unjust enrichment in the process of liquidation of the B Housing Association, and therefore the claim in this part of the previous case is not affected by the res judicata effect of the relevant claim in the previous case. Accordingly, this part of the defendant's claim

C. Judgment on the Plaintiff’s assertion

1) According to the evidence No. 35, B housing association shall open a meeting of its members on April 15, 2006 to resolve dissolution, appoint P among its members as a liquidator, and complete liquidation affairs after the completion of liquidation affairs.

The liquidation has been completed with the approval of dissolution of the Seosan market. The plaintiff's assertion in this part is without merit, even if there is a defect in the liquidation procedure, such as the plaintiff, the creditor of the B Housing Association, was excluded from liquidation, and thus, it cannot be deemed that there is no legal ground for the defendant, the creditor of the B Housing Association, to receive liquidation money in the liquidation procedure.

2) In addition, the fact that the Defendant did not bear the obligation to compensate for damages equivalent to KRW 2.43 billion and KRW 650 million against B Housing Association is as seen earlier. Therefore, without considering the above obligation to compensate for damages, the Plaintiff’s assertion to the effect that it is unreasonable to receive settlement money based on the Defendant’s total loan claim amounting to KRW 8.9 billion is also unreasonable, without considering the above obligation to compensate for damages, is without merit.

4. Conclusion

Therefore, the plaintiff's primary claim and conjunctive claim of this case are all dismissed as they are 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. It is so decided as per Disposition.