Plaintiff Co., Ltd. (Attorney Lee Woo and one other, Counsel for the plaintiff-appellant)

Construction Financial Cooperative (Law Firm, Kim & Lee LLC, Attorneys Gyeong-ho et al., Counsel for the plaintiff-appellant)

November 6, 2007

1. The defendant shall pay to the plaintiff 2,361,307,050 won with 6% interest per annum from November 9, 200 to November 3, 2006 and 20% interest per annum from the next day to the day of full payment.

2. The plaintiff's remaining claims are dismissed.

3. 1/10 of the costs of lawsuit shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

4. Paragraph 1 can be provisionally executed.

The defendant shall pay to the plaintiff 2,52,723,050 won with 6% interest per annum from November 9, 200 to the delivery date of a copy of the complaint of this case, and 20% interest per annum from the next day to the day of complete payment.

1. Basic facts

The following facts may be acknowledged, either under dispute between the parties, or under consideration of the whole purport of arguments in the statements in Gap's 1 through 3, Eul's 2, 4, 5, Eul's 3-1 through 18, Eul's 6-1 through 8, Eul's 7-1 through 5, Eul's 8-1, and Eul's 8-2.

A. On October 31, 200, the Plaintiff applied for the commencement of the company reorganization proceedings to the Daegu District Court on November 29, 200, and received the decision of November 13, 200, and promoted third party acceptance after the completion of the reporting period of the reorganization claims and securities until January 13, 201, which was decided to authorize the reorganization plan on October 18, 2002, and completed the reorganization procedure on March 13, 2003.

B. At the time of October 31, 200, the Plaintiff, as the Defendant’s partner, owned the 5,410 investment shares (hereinafter “instant investment certificates”). However, the Plaintiff established a pledge on the said investment certificates against the Defendant as a security for borrowing or obtaining a guarantee of various money from the Defendant.

C. By October 31, 200, ① the sum of the amount guaranteed by the guarantee that the Defendant issued to the Plaintiff is KRW 64,260,674,203, ② the sum of the amount guaranteed by the Plaintiff’s joint and several sureties’s indemnity obligations owed to the Defendant by a third party is KRW 19,435,770,791, ③ the sum of the amount loaned by the Defendant to the Plaintiff is KRW 3,721,00,000.

D. On October 31, 200, the Plaintiff lost the benefit of each of the above obligations upon filing an application for commencement of the company's reorganization proceedings. On November 2, 2000, the Defendant, upon exercising a pledge over the above 5,410 shares, acquired shares equivalent to KRW 6,309,347,580 realized in KRW 1,66,238 per unit by exercising a pledge over the above 5,410 shares. On November 8, 2000, the Defendant notified the Plaintiff of the deposit deposit (hereinafter "the deposit of this case") to the effect that on November 8, 200, the amount of KRW 3,721,00, and interest KRW 4,077,80 and KRW 31,52,723,050 remaining after deducting the amount of KRW 31,546,730 from the above realization deposit to the Defendant of the Plaintiff.

E. After the company reorganization procedure has commenced against the Plaintiff, the Defendant notified the Plaintiff that the claim for indemnity amounting to KRW 191,416,000, which occurred from the Plaintiff’s subcontractor’s performance of the obligation to guarantee the amount of down payment was offset against the deposit received (hereinafter “instant offset”).

본문내 포함된 표 ？ 하도급업체 보증채무 이행금액(원) 보증서발급일 또는 보증서발급신청일자 보증채무 이행일자 1 소외 3 주식회사 6,000,000 2000. 3. 7. 2001. 1. 12. 2 소외 3 주식회사 20,945,000 2000. 3. 7. 2000. 12. 7. 3 소외 4 주식회사 25,000,000 2000. 4. 20. 2001. 1. 11. 4 소외 4 주식회사 28,000,000 2000. 4. 20. 2000. 12. 15. 5 소외 5 주식회사 17,000,000 2000. 8. 14. 2000. 12. 18. 6 소외 6 주식회사 28,000,000 1999. 10. 20. 2000. 12. 20. 7 소외 6 주식회사 30,000,000 1999. 10. 20. 2001. 1. 12. 8 소외 7 주식회사 36,471,000 1999. 10. 12. 2001. 1. 9. 합계 ？ 191,416,000 ？ ？

F. In the company reorganization procedure against the plaintiff, the defendant did not report the investment certificate or deposit money of this case as a security, and the prior right to indemnity of KRW 64,069,258,203 according to the guarantee, and ② the prior right to indemnity of KRW 19,435,70,791 according to the guarantee (hereinafter referred to as "the prior right to indemnity of this case") was reported as a reorganization claim and the plaintiff did not object thereto, so the prior right to indemnity of this case became final and conclusive as the defendant's reorganization claim.

G. Article 21-2 of the Defendant’s articles of incorporation (hereinafter “instant articles of incorporation”) provides that “A union member may not demand the union to acquire shares for the recovery of its investments with respect to all obligations owed to the union.” Article 7(1) of the Defendant’s “Rules on the Acquisition and Management of Equity Shares (the purpose of Article 60 of the Framework Act on the Construction Industry is to provide for matters necessary for the union member’s acquisition, settlement, management and disposal of equity shares under the provisions of Article 60 of the same Act)” provides that “The refund amount of shares acquired shall be appropriated for the claims of the first union, and if there is any remaining amount, it shall be paid without delay to the right holder” and Article 2(2) of the same Act (hereinafter “instant provisions”) provides that “if a union claim secured by the acquired equity shares remains or there is any other legal problem, the refund amount shall be reserved.”

2. The parties' assertion

A. The plaintiff's assertion

(1) Although the Plaintiff’s deposit received of this case continues to have a similar security right as a beneficiary of the investment certificate, the security right becomes effective because the Defendant did not report the investment certificate or deposit received of this case as a security in the company reorganization procedure, and the right to prior reimbursement of this case is repaid in accordance with the company reorganization plan. Thus, the Defendant sought the return on the ground that there is no right to keep the deposit received of this case.

She and the instant offset are prohibited by the main text of Article 163 subparag. 2 and No. 4 of the former Company Reorganization Act, and the permission of such offset is against the principle of creditor equality, and thus, is null and void.

Article 22(1) of the Civil Act provides that the Defendant’s claim for the extinctive prescription as set forth below shall be subject to the suspension of the extinctive prescription of the Plaintiff’s claim for the return of deposit received through the reply to the Debt Inquiry Council (Evidence A2) on March 4, 2005.

B. Defendant’s assertion

(1) On November 2, 200, before the commencement of the company reorganization proceedings against the plaintiff, the defendant acquired shares by exercising a pledge on the investment certificate on the investment certificate on November 2, 200, and thus there is no security right to report the company reorganization proceedings. Since the defendant holds a prior right to indemnity against the plaintiff and reported it as a reorganization claim, the defendant asserts that the defendant has the right to keep the deposit of this case until the plaintiff's obligation such as the above prior right to indemnity is extinguished. On the other hand, the defendant asserts that the deposit of this case constitutes a prior indemnity payment received by the defendant by exercising the prior right to indemnity of this case, and thus, it cannot be returned as a good manager who shall use it for the discharge of the plaintiff

She and the instant set-off asserted that Article 162(1) of the former Company Reorganization Act and Article 163(2) proviso (b) and (4) of the former Company Reorganization Act are permitted.

Article 60(5) of the Framework Act on the Construction Industry argues that the Defendant’s right to claim the return of deposit shall expire five years after November 2, 200, when the Defendant acquired equity shares pursuant to Article 60(5) of the same Act.

3. Determination

(a) Related statutes;

(i)The Framework Act on the Construction Industry

Article 60 (Share Acquisition, etc. by Mutual-Aid Association)

(1) Where any cause falling under any of the following subparagraphs occurs, the Financial Cooperative may acquire the equity of any member or any former member: Provided, That where it falls under subparagraph 1, it shall acquire such equity:

1. Where it desires to decrease contributions;

2. Where it is necessary to realize security interest with which it has partners;

3. When any person who has invested in the mutual aid association requests the mutual aid association to take over equity shares in order to recover his contributions;

4. Where 2 years have elapsed since any partner withdraws; and

5. Where any fractional account occurs at the time of transferring reserve funds into contributions;

(2) Where a mutual aid association acquires shares pursuant to paragraph (1) 1, it shall without delay take the procedure of reducing the amount of its investment, and where it falls under subparagraphs 2 through 5 of the same paragraph, it shall dispose of the shares without delay, but for shares not disposed of, the amount of its investment may be reduced pursuant to the articles of

(3) No shares of members shall be the object of a pledge unless they are provided as security for liabilities to a mutual aid association.

(4) Where a mutual aid association acquires shares pursuant to paragraph (1), it shall pay without delay the amount to be paid to the persons who are or were its members.

(5) The claim for settlement money held by a current or former member following the acquisition of shares by the Financial Cooperative pursuant to paragraph (1) shall be extinguished by prescription, if it is not exercised within five years from the date of acquisition of such shares.

Doshed Company Reorganization Act (repealed by Act No. 7428, Mar. 31, 2005)

Article 162 (Right of Set-off)

(1) Where a reorganization creditor or security holder bears obligations to the company at the time of commencement of reorganization proceedings, and where both claims and obligations are able to offset against him, before the expiration of the reporting period of the reorganization claims and securities, the reorganization creditor or security holder may offset him/her in accordance with reorganization proceedings, within the limit of that period. This provision

Article 163 (Prohibition of Set-off)

1. Where the reorganization creditor or security holder bears an obligation to the company after the commencement of reorganization proceedings;

2. Where a reorganization creditor or security holder bears an obligation to the company with knowledge that an application for suspension of payment, bankruptcy, commencement of composition, or commencement of reorganization proceedings has been made: Provided, That this shall not apply to any of the following cases:

(a) When the bearing of obligations is based on statutory grounds;

(b) Where the reorganization creditor or security holder becomes aware that an application has been made for suspension of payment, or bankruptcy, commencement of composition, or reorganization proceedings;

(c) Where a cause occurs not less than one year prior to the time of adjudication of bankruptcy, commencement of composition and commencement of reorganization proceedings;

3. Where the debtor of the company acquires another person's reorganization claim or security after the commencement of reorganization proceedings;

4. Where a debtor of the company acquires the reorganization claim or security in the knowledge that an application has been made for the suspension of payment, bankruptcy, commencement of composition proceedings or reorganization proceedings: Provided, That this shall not apply in cases where such acquisition is based on legal cause, a cause arising prior to the time when the debtor knows that an application for suspension of payment, bankruptcy, commencement of composition proceedings or reorganization proceedings has been made, or a cause arising one or more years prior to the time of a declaration of bankruptcy

B. Determination on the claim for return of deposit received

(1) Under the provision of Article 60(4) of the Framework Act on the Construction Industry, the Defendant is obligated to return the Plaintiff’s deposit received, i.e., the amount to be paid after acquiring the Plaintiff’s equity shares.

d. Judgment on the Defendant’s defense

㈎ 이 사건 정관조항의 규정 취지는 조합원이 조합에 대한 채무는 이행하지 아니한 채 출자금만을 환급받아 가는 것은 출자지분에 의하여 담보되는 조합의 조합원에 대한 채권의 실현가능성과 조합의 자본충실을 해하고 다른 조합원과의 형평에 어긋나므로 이를 방지하기 위한 것으로 보이고, 이러한 규정의 취지 및 문언의 내용에 비추에 볼 때, 이 사건 정관조항은 조합원의 조합에 대한 채무가 소멸할 때까지는 당해 조합원이 먼저 조합을 상대로 출자금의 회수를 위한 출자지분의 취득을 요구할 수 없다는 것이지, 조합이 스스로 담보권을 실행하여 조합원의 출자지분을 취득한 경우에 있어 조합이 출자지분 취득 후 예수금으로 보유하고 있는 금원에 대하여 조합원이 반환을 구할 수 없다는 취지는 아니라고 보아야 할 것이다. 따라서 위 조항에 기하여 피고가 이 사건 예수금의 반환을 거부할 수는 없다.

㈏ 그리고 구 회사정리법 제162조 제1항 은 “정리채권자 또는 정리담보권자가 정리절차개시당시 회사에 대하여 채무를 부담하는 경우에 채권과 채무의 쌍방이 정리채권과 정리담보권의 신고기간만료전에 상계할 수 있게 되었을 때에는 정리채권자 또는 정리담보권자는 그 기간내에 한하여 정리절차에 의하지 아니하고 상계할 수 있다”고 규정하고 있어, 피고는 회사정리절차상 정리채권 등의 신고기간이 지난 후에는 더 이상 이 사건 예수금을 원고에 대한 채권과 상계할 수 없는바, 위와 같은 사정 및 건설산업기본법 제60조 의 규정 내용에 비추어 볼 때, 이 사건 규정조항은 예수금을 통하여 채권을 변제받을 수 있는 경우, 즉 조합원의 예수금반환채권과 조합의 조합원에 대한 채권과의 상계가 가능한 경우를 전제로 한 규정이고, 회사정리절차상 정리채권 등의 신고기간이 도과하여 예수금을 보유하여도 조합이 조합원에 대한 채권과 상계하는 것이 불가능한 경우까지 예수금반환을 유보할 수 있다는 것은 아니라고 봄이 상당하다(만일 위와 같이 해석하지 않는다면 피고가 예수금반환을 거부함으로써 사실상 구 회사정리법 제162조 제1항 의 상계제한을 회피할 수 있는 부당한 결과가 초래된다). 그러므로 원고에 대한 회사정리절차상 정리채권 등의 신고기간이 경과한 이상 피고는 이 사건 규정조항에 기하여 예수금반환을 거부할 수 없다.

㈐ 또한 앞에서 본 바와 같이 피고가 원고에게 ‘원고의 채무가 소멸할 때까지 예수금을 보관하겠다’는 내용의 통지를 하고, 이 사건 사전구상권을 정리채권으로 신고한 이상, 이 사건 예수금을 피고가 사전구상권을 실행하여 이미 수령한 사전구상금이라고 볼 수는 없으므로 이에 관한 피고의 주장도 이유 없다.

㈑ 이어서 피고의 소멸시효 주장에 관하여 보건대, 이 사건 소가 피고가 출자지분을 취득한 2000. 11. 2.로부터 5년이 경과한 2006. 10. 31. 제기된 사실은 기록상 명백하나, 한편 갑 제2호증의 기재에 의하면, 피고가 2005. 3. 4. 원고에게 보낸 채무조회에 대한 회신에서 ‘담보권실행에 따른 정산유보금 2,361,307,050원’을 보유하고 있음을 통지한 사실이 인정되는바, 이는 피고가 예수금반환채무의 존재를 인정하면서 원고에 대한 채권과의 상계를 위해 그 반환을 유보하겠다는 의사를 표시한 것으로 봄이 상당하므로, 이로써 원고의 이 사건 예수금반환청구권의 소멸시효 진행이 중단되었다고 할 것이어서 피고의 위 주장은 이유 없다.

C. Determination on the instant offset

At the time of November 29, 200, when the company reorganization procedure has commenced against the plaintiff, the defendant was liable for the refund of deposit in accordance with the exercise of the pledge on November 2, 2000, and the fact that the defendant fulfilled his liability for the guarantee against the subcontractor before January 13, 2001, which is the expiration date of the report of reorganization claims, and acquired the right to indemnity of KRW 191,416,00 as a result of the defendant's fulfillment of its liability for guarantee against the subcontractor before January 13, 2001, the above fact that the defendant bears the obligation to refund the deposit and acquired the above right to indemnity with the knowledge

According to the company reorganization procedure law, the legal relation corresponding to the "reasons arising before a reorganization creditor or security holder becomes aware that an application for suspension of payment, bankruptcy, commencement of composition proceedings, or commencement of reorganization proceedings has been made" under the proviso of Article 163 subparagraph 2 (b) of the Company Reorganization Act shall be direct to the extent that a creditor would cause a specific offset period, and in individual cases, it shall be deemed that there is a justifiable value to protect the trust of reorganization creditors in respect of the act of offsetting security by comprehensively taking into account the specific circumstances (see Supreme Court Decision 2003Da61931 delivered on September 28, 2005), and subparagraph 3-1 through 18 of Article 163 of the Company Reorganization Act, where the plaintiff established a pledge on the investment certificate of this case between 1979 and 193, and where the plaintiff fails to fulfill the contractual provisions and joint and several surety obligations under the bond or guarantee agreement, it shall be deemed that the agreement or joint and several surety relationship between the plaintiff and the defendant constitutes a set-off and the defendant's trust or security right of this case.

In addition, in light of the timing of issuance and the contents of guarantee that the defendant's letter of large-scale payment guarantee for the plaintiff's subcontractor was issued prior to the commencement of company reorganization procedures for the plaintiff, it can be deemed that the defendant's above right to indemnity constitutes a case where the defendant's acquisition was made pursuant to the proviso of Article 163 (4) of the former Company Reorganization Act "the cause that occurred prior to the time when the debtor becomes aware of the application for suspension of payment, bankruptcy, commencement of composition or commencement of reorganization procedures." Thus, the defendant's offset of this case is permitted pursuant to Article 162 (1) of the former Company Reorganization Act and the proviso of Article 163

4. Conclusion

Therefore, the defendant is obligated to pay to the plaintiff 2,361,307,050 won remaining after deducting the offset amount of 191,416,00 won from the deposit deposit of this case and damages for delay calculated at the rate of 6% per annum under the Commercial Act from November 9, 2000 to November 3, 2006, which is the day following the defendant's notice of the acquisition of equity shares and the receipt of deposit after the acquisition date of the defendant's equity shares, as requested by the plaintiff, and from the next day to the day of full payment, from November 3, 2006, the delivery date of a copy of the complaint of this case to the day of full payment. Thus, the plaintiff's claim of this case of this case is justified within the scope of the above recognition, and the remaining claims are dismissed as it is so decided as per Disposition.

Judges Choi Young-young (Presiding Judge) (Presiding Justice)