Pos Construction Co., Ltd. (Law Firm New Seoul, Attorney Yang Jong-tae, Counsel for the defendant-appellant)

Korea Housing Guarantee Co., Ltd. (Law Firm Yuil, Attorney Jeong Ho-ho, Counsel for defendant-appellant)

Seoul Southern District Court Decision 2009Kadan96421 Decided July 7, 2010

November 30, 2010

1. The plaintiff's appeal is dismissed.

2. The plaintiff's claim extended in the trial is dismissed.

2. The costs of appeal (including costs arising from the extension of a claim) shall be borne by the Plaintiff.

The judgment of the first instance shall be revoked. The defendant shall pay to the plaintiff 283,510,140 won with 6% interest per annum from May 11, 2009 to the delivery date of the application for amendment of the purport of the claim, and 20% interest per annum from the next day to the day of complete payment (the plaintiff extended the claim in the trial).

1. Quotation of judgment of the first instance;

The reasoning for this Court’s explanation is as follows: (a) in addition to adding a judgment on the Plaintiff’s assertion raised in the trial as set forth in the following (2), all of the grounds for the judgment of the first instance court are the same as that of the judgment of the first instance; and (b) in accordance with

2. Parts to be determined additionally

A. As to the argument that the defendant's exercise of the right of set-off violates the good faith principle

Since the plaintiff asserts that the right of offset is null and void because the defendant's exercise of the right of offset is in violation of the principle of good faith, the defendant, who carries out various guarantee businesses, etc. related to the housing construction project, has a legitimate right to offset the claims for refund of deposit money with the claims for the loan for Acheon Construction, and there is a reasonable expectation that the claims for offset can be recovered smoothly in the future by exercising that right. Thus, in order to be seen as an abuse of right or a violation of the principle of good faith, there is a duty to cooperate with the other party or a third party or to protect his interests in order to achieve the purpose and purpose of the right of refund of deposit money, there is a special reason to deem that the exercise of the right of offset has no legal protection in light of the specific individual circumstances that led to the exercise of the right of offset. In light of the above fact of offset and the progress of the exercise of the right of offset, it is difficult to deem that the defendant has any special reason to be restricted from exercising his right of offset. Thus

B. As to the assertion of the breach of duty of care and good faith or the profit of the trust as the trustee

The plaintiff asserts that although the defendant was able to recover the deposit due to the non-party's cancellation ruling, it was in breach of the duty of due care of a good manager to anticipate that the Acheonyang Construction would be in default and intentionally set-off, and that it would eventually lead to the benefit of the trust.

In light of the above A., the defendant's exercise of the right of set-off is recognized as legitimate exercise of the right as seen in the above A., it is insufficient to recognize that the evidence submitted by the plaintiff alone is sufficient to recognize that the defendant predicted the dishonor of the A.S. construction and intentionally made a set-off or received a benefit from the trust, and there is no other evidence to acknowledge it. Thus, the plaintiff's above assertion is without merit.

3. Conclusion

Therefore, the plaintiff's claim (including the plaintiff's claim extended in the trial) is without merit, and it is legitimate in the judgment of the court of first instance as to this conclusion. Therefore, the plaintiff's appeal is dismissed and it is so decided as per Disposition.

Judges Kim Jong-ju (Presiding Judge)