Korea Deposit Insurance Corporation (Law Firm Effica, Attorneys Lee Young-hoo et al., Counsel for the plaintiff-appellant)

Asian Trust Co., Ltd. (Law Firm continental Aju, Attorneys Gyeong-hee et al., Counsel for the plaintiff-appellant)

February 25, 2014

1. The Defendant (Counterclaim Plaintiff) shall pay to the Plaintiff (Counterclaim Defendant) 1,654,791,965 won with 5% interest per annum from April 30, 2013 to March 28, 2014; and 20% interest per annum from the next day to the date of full payment.

2. The plaintiff (Counterclaim defendant)'s remaining claims are dismissed.

3. The defendant (Counterclaim plaintiff) shall dismiss the preliminary counterclaim.

4. The costs of lawsuit shall be borne by the Defendant (Counterclaim Plaintiff) in total, with the principal lawsuit and counterclaim.

5. Paragraph 1 can be provisionally executed.

The purport of the main claim: Paragraph (1) shall be the same as the case, except for the claim for the payment of damages for delay at the rate of 20% per annum from the day after

The plaintiff received 1,654,791,965 won from the defendant and 5% amount per annum from April 30, 2013 to the date the judgment of this case is rendered. The plaintiff deposited the above amount in the deposit money account opened by the plaintiff with the permission of the Seoul Central District Court.

1. Facts of recognition;

A. Trust contract, etc. of this case

(1) A natural development company is a truster who has trusted real estate listed in the separate sheet to the Defendant (the trade name of the natural development company prior to the registration of change as of June 4, 2010 was CF Communications Corporation; hereinafter the same shall apply). The Korea Savings Bank is a first beneficiary of the collateral trust contract, and the Plaintiff was appointed as the trustee in bankruptcy on the same day on September 7, 2012 after being declared bankrupt by this court 2012Hahap96. The name of the Korea Savings Bank prior to the registration of change as of September 24, 2010 was the first mutual savings bank, and the name of the Korea Savings Bank was the first mutual savings bank prior to the registration of change as of September 24, 2010; hereinafter the same was referred to as the Plaintiff when the Plaintiff and the Korea Savings Bank were collectively named the Korea Savings Bank).

Luxembourg Natural Development concluded the instant real estate security trust agreement with the Defendant, a trust company, on May 3, 2010, regarding the real estate listed in the attached Table 1, and the trust period was five years from the date of the registration of the trust, the priority beneficiary with respect to the trust principal was determined to be natural development, and the priority beneficiary with respect to the trust principal was determined to be the beneficiary of the Japanese Savings Bank (7 billion won in the upper priority beneficiary), subordinate beneficiary and trust proceeds. On May 6, 2010, the trust registration was completed in the Defendant’s future. Accordingly, the Japanese Savings Bank loaned KRW 3.19 billion to natural development.

Referencely, the trust contract was amended as follows due to changes in the name of the truster and the trustee, and some of the lands were combined.

After the change of the list classification contained in the main text, the name of the beneficiary of the first beneficiary of the trust principal after the change in the list list included in the main text, the name of the beneficiary of the first beneficiary of the first beneficiary of the first beneficiary of the first beneficiary of the first beneficiary of the first beneficiary, the resident registration number (corporate registration number 1 omitted), resident registration number (resident registration number 1 omitted), resident registration number 1 of the first beneficiary bank of the first beneficiary of the second beneficiary of the first beneficiary of the second beneficiary of the second beneficiary of the second beneficiary of the second beneficiary (resident registration number 2 omitted) address of Songpa-gu Seoul (resident address 2 omitted), Songpa-gu, Seoul (resident address 2 omitted), the corporate registration number (corporate registration number 2 omitted), the corporate registration number (corporate registration number 2 omitted), the corporate registration number (corporate registration number 2 omitted), the debtor of ○○ building, the corporate name of the debtor of the second beneficiary of the second beneficiary of the second beneficiary, and the address 308 address of △△△△△△△△△△△△△ 300,000,7000 won and the attached list

(b) Public sale of trusted real estate;

(1) According to Article 18(1)1 of the instant trust agreement, in a case where a natural development violates a credit transaction agreement concluded with the Japanese Savings Bank, the trust real estate may be disposed of at the request of the Japanese Savings Bank. The Plaintiff, a trustee in bankruptcy, requested the Defendant to dispose of the trust real estate as the natural development breached a credit transaction agreement.

Luxembourg The Defendant sold the relevant real estate by going through a public auction procedure for the real estate No. 1-17 of [Attachment 2] No. 1-17 of [Attachment 2], and completed the registration of ownership transfer on January 10, 2013.

Article 22(1) of the Civil Procedure Act provides that “The purchase price that the Defendant received through the public auction procedure shall be KRW 1,746,236,100, which is the expenses of the public auction notification, KRW 5,087,50, KRW 9,772,650, KRW 2838,00, KRW 42,810,585, and KRW 30,935,40, and KRW 1,654,791,965, and the remainder of the purchase price that the Defendant received through the public auction procedure is the expenses of the public auction notification, KRW 2,88,00, KRW 9,772,650, and KRW 2,838,00, and KRW 30,935,40,00,

(c) A separate trust deed;

(1) On May 3, 2010, the Defendant entered into a separate trust agreement and an agent agreement (hereinafter referred to as the “joint trust agreement”) with the truster with respect to the 90 parcel of land in Western-ri, Seonam-ri, Yangyang-do, and real estate security trust agreement with the trustee with respect to the construction of new units of land in the above ( Address omitted). On the same day, with respect to the construction of new units of land in the above ( Address omitted), the Defendant formed a mutual savings bank with the Defendant, Sori-ri, Il Savings Bank, the Japanese Savings Bank, and the Japanese Savings Bank (hereinafter referred to as the “Japan Savings Bank”) with respect to the business with development of new units of land in the above ( Address omitted), an implementer (seller), an agent company, the Defendant, the Defendant, the Han Savings Bank with the loan-mortgage, the Han Savings Bank with the mortgagee of the right to collateral security (hereinafter referred to as the “joint trust agreement”).

⑵ 별건 신탁계약 제15조에 의하면, ① 신탁부동산 및 신탁이익에 대한 제세공과금, 유지관리비 및 금융비용 등 기타 신탁사무의 처리에 필요한 제비용 및 신탁사무 처리에 있어서 수탁자의 책임없는 사유로 발생한 손해는 위탁자의 부담으로 하고, ② 신탁재산에 속하는 금전이 제1항의 제비용 등의 지급에 부족하고 위탁자로부터 그 부족금액을 받을 수 없는 경우에는 수탁자가 상당하다고 인정한 방법으로 신탁부동산의 일부 또는 전부를 매각해서 대위 지급할 수 있고, ③ 위탁자가 제1항의 비용을 지급시기에 납부하지 않는 경우에는 수탁자가 대신 납부할 수 있고, 이 경우 위탁자는 그 지급일로부터 상환일까지의 지연손해금을 우선수익자로 처음 지정한 굼융기관 연체이율에 의한 지체상금으로 수탁자에게 지급하여야 하고, ④ 수탁자는 제3항의 대지급금과 지연손해금을 위탁자 또는 우선수익자에게 지급할 금전 또는 재산 중에서 이를 우선 공제, 수취할 수 있다고 되어 있다.

Article 25 of the Act on Representation Services provides that “If the trust property is disposed of due to the exercise of the right by the senior mortgagee on a trust property, the Japanese Savings Bank shall bear the shortage of the expenses (such as taxes, public charges, and litigation costs) imposed on the Defendant when the trust property is disposed of (Article 25).” (A separate trust agreement on real estate subject to the instant trust agreement, the mortgage-mortgage amounting to KRW 30 billion was set up in sum of the maximum maximum debt amount

Applicant ① After entering into a separate trust contract, the Defendant, the trustee, was subject to deemed acquisition tax, etc. following the land category change. In other words, on January 9, 2013, the Minister of Agriculture, Forestry and Fisheries sent a notice to the Defendant that the Defendant would pay KRW 3,442,459,840, such as deemed acquisition tax, by January 31, 2013. On February 31, 2013, the Minister of Agriculture, Forestry and Fisheries requested the Defendant to pay KRW 1,721,229,920 over two occasions by January 31, 2013, at the Defendant’s request for extension approval of payment deadline, the Defendant decided to pay KRW 1,721,29,920 up to July 31, 2013. ② The Defendant paid KRW 1,721,29,2920 on January 30, 2013 to the Plaintiff’s claim to reimburse the Plaintiff’s expenses against the beneficiary.

[Ground of recognition] The evidence Nos. 1 through 6, Eul Nos. 1 through 21, and the purport of the whole pleadings

2. The parties' assertion and judgment

A. Obligation to pay the settlement of accounts for public auction upon claims on the merits

According to the above facts A and B, the Defendant, the trustee of the trust contract of this case, is obligated to pay damages for delay calculated at the rate of 1,654,791,965 won to the Plaintiff, the bankruptcy trustee of the trust property of this case, and 5% per annum as stipulated in the Civil Act from April 30, 2013 to March 28, 2014, which is the date of the decision of this case where it is deemed reasonable for the Defendant to dispute as to the existence or absence of the above obligation, from April 30, 2013, following the date following the Plaintiff’s consent to the final settlement of accounts for public sale following the disposition of real estate held in trust, to the date of full payment.

B. The defendant's counterclaim and judgment against the main claim

(1) According to Paragraph (3) of the above facts, deemed acquisition tax imposed on the Defendant, the trustee, in relation to the separate trust agreement, is deemed necessary for the maintenance, management, etc. of the trust real estate, and can be repaid to the Plaintiff, the beneficiary, according to the agreement (hereinafter referred to as the “instant expense reimbursement claim”). The Defendant asserted that, on the other hand, the Plaintiff’s defense that the instant expense reimbursement claim against the Defendant was extinguished, according to the Plaintiff’s intention of set-off based on the instant expense reimbursement claim, the set-off

Article 422 Subparag. 1 of the Complemented Bankruptcy Act provides that the time when the bankruptcy creditor bears his/her obligation to the bankrupt estate after the declaration of bankruptcy may offset the time limit or the time when the bankruptcy is declared. However, the latter part of Article 417 of the Bankruptcy Act provides that the claims of the bankruptcy creditor may offset the time limit or the time when the bankruptcy is declared. In the case of this case, although the claim for the settlement of accounts for public sale of this case, which is the passive claim, was finally created after the bankruptcy of the Japanese Savings Bank was declared, the underlying legal relationship of the occurrence was formed pursuant to the trust contract of this case, and thus, the offset may be made pursuant to the above provisions of the Bankruptcy Act (it is possible to offset the claims for the repayment of expenses

Meanwhile, according to Article 15 of the separate trust agreement, if the truster does not pay taxes and public charges on behalf of the truster or beneficiary, the trustee may first deduct or receive the substitute payment from among the money or property to be paid to the truster or beneficiary, and according to Article 25 of the separate trust agreement, "if the trust property is disposed of due to the exercise of the right by the senior mortgagee of the trust property, it shall be borne by the Japanese Savings Bank in the event of the shortage of the expenses (such as taxes, public charges, and legal costs) imposed on the defendant when the trust property is disposed of due to the execution of the right by the senior mortgagee of the trust property." The purport of this case is that if the trust agreement is concluded in the future of the loan bank or the loan bank is the priority beneficiary under the trust agreement, the truster or the lending bank, who is not the beneficiary of the trust property, shall not be deemed to have the personal liability of the bank as the general property in excess of the scope of the amount to be paid within the scope of the money to be paid by the truster or beneficiary of the trust property loan agreement, and the trust agreement shall not be deemed to be paid by the trust agreement or deposit.

C. Determination on the preliminary counterclaim

(1) If the Plaintiff asserts that the right to claim reimbursement of expenses of this case, which is an automatic claim, is a claim under the condition of suspending an auction based on the right to collateral security of the Japanese Savings Bank, and that it is not possible to set off any claim, the Plaintiff is obligated to deposit the amount equivalent to the settlement of accounts for public auction of this case, which is the passive claim, with the fulfillment of the future condition,

According to Articles 417 and 418 of the Complemented Bankruptcy Act, bankruptcy creditors can set off the claims subject to the condition precedent against the claims subject to the condition precedent, and when those who hold the condition precedent or future claims discharge their obligations, they can claim the deposit of the amount of the repayment within the limit of the claim amount for the subsequent set-off.

Secondly, if Articles 479 through 537 of the Bankruptcy Act, etc. comprehensively define the relevant provisions of the Bankruptcy Act, if the defendant claims a deposit to the trustee in bankruptcy and fails to comply with such a claim, it is not possible to seek a performance of the deposit as a separate civil procedure. Thus, the defendant's preliminary counterclaim is unlawful (in this case, the offset is not allowed as seen earlier, and the defendant's assertion is without merit).

3. Conclusion

Therefore, the plaintiff's claim of this case is accepted within the scope of the above recognition, and the remainder of the main claim is dismissed as it is without merit, and the defendant's conjunctive counterclaim is dismissed as it is illegal.

[Attachment]

Judges Lee Sung-gu (Presiding Judge)