Korea

The first half industry (the administrator of the non-party, who was the administrator of the rehabilitation debtor's first half industry, the non-party)

May 19, 2017

Seoul Central District Court Decision 2016Gahap536027 Decided January 19, 2017

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 pay to the plaintiff 482,969,862 won with 5% interest per annum from September 20, 2016 to the day of full payment.

1. Basic facts

The reasoning of the judgment of this court concerning this part is the same as that of the judgment of the court of first instance, and therefore, it is accepted by the main text of Article 420 of the Civil Procedure Act.

2. Summary of the parties’ assertion

A. The plaintiff

1) Under Article 121(2) of the Debtor Rehabilitation and Bankruptcy Act, the Plaintiff, who is the other party, may claim the return or redemption of the excess amount as a priority claim, if it was found that the completed portion of the construction was paid as a part of the counter-performance in return, and then that was paid as a result of the termination of the contract.

2) Even in light of the view that the claim for the return of unjust enrichment that may be claimed irrespective of the termination of the excess payment is not a claim arising from the termination, the amount of KRW 374,602,40 paid to subcontractors was paid after the commencement of rehabilitation procedures. Since the right to claim the return of the excess payment accrued at the time when the right to claim the return of the excess payment was paid, the portion of the excess portion out of the progress payment accrued after the commencement of rehabilitation procedures. This constitutes a claim arising from unjust enrichment that is a priority claim under Article 179(1)

B. Defendant

1) The payment for completed portion paid in excess of the Plaintiff’s assertion by mistake is an erroneous payment that did not have a contractual obligation unlike the advance payment paid under the instant contract, and thus, can immediately be claimed as unjust enrichment regardless of the termination of the instant contract. Therefore, it does not constitute a priority claim under Article 121(2) of the Debtor Rehabilitation Act.

2) The construction cost of KRW 374,602,40,00 paid by the Plaintiff to the subcontractor or the subcontractor to the assignee of the claim is a rehabilitation claim that occurred before the commencement of rehabilitation procedures by the Defendant against the Defendant, and thus, the right to indemnity or subrogation is not changed to a public-interest claim on the ground that the assignee of the subcontractor or subcontractor paid the rehabilitation claim by subrogation after the commencement of rehabilitation procedures by the Defendant, and even if such subrogation constitutes unjust enrichment by subrogation, it does not constitute a public-interest claim beyond the scope of the

3) The Plaintiff’s excessive claim is a rehabilitation claim and can only be reimbursed according to the instant rehabilitation procedure. The Plaintiff did not report the above claim as a rehabilitation claim in the instant rehabilitation procedure, and the rehabilitation plan approval plan was completed in the state that the claim is not entered in the list of rehabilitation creditors. Therefore, even if the above claim is asserted by the Plaintiff, the Defendant’s liability is exempted pursuant to the main sentence of Article 251 of the Debtor Rehabilitation Act, and thus, the Plaintiff’s lawsuit in this

3. Determination

A. Whether the case constitutes a priority claim under Article 121(2) of the Debtor Rehabilitation Act

1) Contents of the relevant provisions

Article 119(1) of the Debtor Rehabilitation Act provides, “When the debtor and the other party to a bilateral contract have not yet completed the performance of the bilateral contract at the time rehabilitation procedures commence, the custodian may rescind or terminate the bilateral contract.” Article 121 of the Debtor Rehabilitation Act provides, “In the case of rescission or termination under Article 119(1), the other party may exercise his/her right as a rehabilitation creditor with respect to damages (Article 119(1)), and when any consideration received by the debtor exists among the debtor’s property, he/she may claim the return of such consideration, and when such consideration exists among the debtor’s property, he/she may exercise his/her right as a public-interest creditor with respect

2) Whether the other party’s claim for return of the progress payment that the other party paid in excess due to mistake, etc. constitutes a priority claim as provided by Article 121(2)

In light of the following circumstances, the claim for the return of the overpaid construction cost claimed by the Plaintiff is not an advance payment paid due to the implementation of the instant contract, but an excessive progress payment paid by the Plaintiff due to mistake, etc., and it is difficult to view it as a consideration corresponding to the payment that has not yet been completed, and therefore, it cannot be deemed as falling under the scope of restitution due to the termination of the instant contract. Therefore, it is difficult to view it as falling under the priority claim under Article

A) The aforementioned relevant provisions appear to be prescribed in light of the smooth progress of rehabilitation procedures and the benefit of the other party. Although they do not fall under the concept of general public-interest claims under Article 121(2) of the Debtor Rehabilitation Act, for the protection of the other party, it appears that the said provisions specifically stipulate the right to claim restitution due to rescission or termination under the said Act as a public-interest claim. This seems to be inappropriate to extend interpretation in light of the purport of rehabilitation procedures, since the said provisions constitute exceptional protection provisions.

B) Article 121(2) of the Debtor Rehabilitation Act appears to be a provision premised on the existence of the right to claim restitution against the consideration upon rescission or termination.

C) With respect to a contract for construction works, even if a contract has been terminated and completed during the construction, if the construction has been considerably advanced and the restoration to its original state has resulted in significant social and economic losses, and the completed part is beneficial to the contractor, the contractor shall deliver the building to the contractor as it is invalidated and the contractor shall pay reasonable remuneration to the building delivered in consideration of the origin and height of the building (see, e.g., Supreme Court Decision 96Da43454, Feb. 25, 1997). Therefore, the contract for construction works may normally terminate the contract, but it does not affect the termination of the contract, and if the contractor or the contractor is the debtor for rehabilitation, the contract for completed portion of the contractor or the subcontractor does not constitute a priority claim under Article 121(2) of the Debtor Rehabilitation Act, but does not constitute a priority claim under Article 121(2) of the Debtor Rehabilitation Act.

D) In a case where a contractor returns advance payment, which is a pre-paid contract for construction work, due to the cancellation or termination of the contract, etc., and the contractor’s return the advance payment exceeding the maturity point at the time the contract was terminated or terminated, it is reasonable to deem that the contractor’s obligation to return advance payment is a kind of obligation to reinstate arising from the termination or termination of the contract (see, e.g., Supreme Court Decision 94Da54702, Mar. 22, 1996). However, the excess payment claimed by the Plaintiff in the instant case is not an advance payment paid under the instant contract, but an excessive payment made in mistake, etc. even though the contractual obligation was not a payment made under the instant contract. This differs from the advance payment that has the authority to retain under the legal ground, which is the contract, and if there exists excess payment as alleged by the Plaintiff, the Plaintiff may immediately claim for the return of the advance payment to the Defendant, regardless of whether the contract was rescinded or terminated. Therefore, it is difficult to view that the claim for return

B. Whether the case constitutes a priority claim under Article 179 of the Debtor Rehabilitation Act

As seen above, since the claim for return of the price paid excessively by the Plaintiff does not constitute a priority claim under Article 121(2) of the Debtor Rehabilitation Act, it constitutes a rehabilitation claim and whether a claim constitutes a public-interest claim ought to be determined by the interpretation of the definition of the general rehabilitation claim (Article 118 of the Debtor Rehabilitation Act) and the public-interest claim (Article 179 of the Debtor Rehabilitation Act).

The term "mortgage claim" under Article 118 subparagraph 1 of the Debtor Rehabilitation Act refers to a claim on property arising from the cause of the occurrence of a claim, such as declaration of intention, etc. before the commencement of rehabilitation procedures, which is based on which the cause of the occurrence of a claim is based on the cause before the commencement of rehabilitation procedures has not been specifically determined or the maturity period arrives after the commencement of rehabilitation procedures (see Supreme Court Decision 99Da55632 delivered on March 10, 200).

According to the above facts, the Plaintiff paid the construction price to the Defendant on October 22, 2014, which was decided to commence the rehabilitation procedure for the Defendant, and includes KRW 108,367,462, out of the amount claimed by the Plaintiff, and the Plaintiff paid KRW 53,540,300 on behalf of the Defendant after the decision to commence the rehabilitation procedure for the construction of the subcontractor’s name; and the Plaintiff paid KRW 321,062,10 in total to the transferee of the subcontractor’s claim for the construction price to the Defendant in Han River Construction upon the decision to commence the rehabilitation procedure in accordance with the court’s payment order or settlement recommendation order; the fact that the subcontractor’s claim for the construction price against the Defendant in Han River Construction or Han River General Construction was established before the decision to commence the rehabilitation

First, in regard to the claim for return of unjust enrichment claimed by the Plaintiff to the Defendant prior to the commencement of rehabilitation procedures, it seems clear that the principal cause of the above claim was already preserved prior to the commencement of rehabilitation procedures. As long as the cause of the claim is based on the cause prior to the commencement of rehabilitation procedures, even if the specific amount of the construction cost to be returned was determined only at the time of settlement after the termination of the contract of this case, the above claim becomes a rehabilitation claim under the Debtor Rehabilitation Act.

Next, this paper examines the subcontractor's claims against the Defendant and the subcontractor's claims against the Defendant, and 376,602,400 won paid by the Plaintiff on behalf of the Plaintiff.

According to the above facts, a subcontractor’s claim for construction price against the Defendant paid by the Plaintiff on behalf of the Plaintiff constitutes rehabilitation claims before the commencement of the rehabilitation procedure. Even if the Plaintiff acquired the right to indemnity or subrogation by repaying it with the Defendant after the commencement of the rehabilitation procedure, the nature of the claim remains intact. Therefore, it cannot be deemed that the former rehabilitation claim is changed to a public-interest claim solely on the ground that it was repaid by a third party

In addition, it is reasonable to view that the above claim is not a claim arising from unjust enrichment under Article 179(1)6 of the Debtor Rehabilitation Act after the commencement of rehabilitation procedures for the debtor, but the subcontractor maintains the same nature as the rehabilitation claim held against the defendant. Therefore, it cannot be deemed that it constitutes a priority claim under Article 179(1)6 of the Debtor Rehabilitation Act.

C. Whether the instant lawsuit is lawful

According to Article 251 of the Debtor Rehabilitation Act, when the rehabilitation plan is authorized, the debtor shall be exempted from liability for all rehabilitation claims and rehabilitation security rights except for the rights recognized under the rehabilitation plan or the Debtor Rehabilitation Act. This refers to a kind of natural obligation in which the debtor still exists and the liability is extinguished, and the obligation itself becomes a kind of natural obligation (see Supreme Court Decision 2001Da3122, Jul. 24, 2001 at the time of the enforcement of the Company Reorganization Act).

However, the fact that the rehabilitation plan approval plan was made on July 1, 2015 without reporting the claim for the return of the construction price that the Plaintiff paid to the Defendant as a rehabilitation claim, and the sewage subcontractor paid by the Plaintiff on behalf of the Defendant did not report the claim for the construction price to the Defendant as a rehabilitation claim in the rehabilitation procedure of this case, and that the claim was not entered in the rehabilitation claim list on July 1, 2015 can be acknowledged by taking into account the overall purport of pleadings and arguments in the evidence No. B. 4. Ultimately, even if the Plaintiff’s claim for the return of the construction price that the Plaintiff paid to the Defendant was not liable in accordance with Article 251 of the Debtor Rehabilitation Act

Therefore, the instant lawsuit seeking the performance of its claim against the Defendant is unlawful as there is no benefit of lawsuit.

4. Conclusion

Thus, the plaintiff's lawsuit of this case shall be dismissed as it is unlawful. Since the judgment of the court of first instance is just in conclusion, the plaintiff's appeal is dismissed. It is so decided as per Disposition.

Judges Lee Jong-soo (Presiding Judge)