2016Na1996 Confirmation of the existence of a lien

A Limited Company

Corporation B

Chuncheon District Court Decision 2015Gahap2302 Decided October 20, 2016

May 17, 2017

June 28, 2017

1. Revocation of the first instance judgment.

2. It is confirmed that the defendant's lien does not exist with respect to each real estate listed in the separate sheet.

3. All costs of the lawsuit shall be borne by the Defendant.

The same shall apply to the order.

1. Basic facts

A. The Defendant’s general travel business, etc., and C Co., Ltd. (hereinafter “C”) are companies with their respective business purposes, including museum facility operation business. C used each real estate listed in the separate sheet (hereinafter “the secondary movable property of this case”) and operated D’s “D’s temphy.”

B. On February 27, 2012, the Defendant: (a) from C on February 27, 2012, the land and buildings including the instant real estate; (b) a sled sled sled sled sled sled sled sled sled sled sled sled sled sled sled sled sled sled sled sled sled sled sled sled sled sled sled 7.2 billion won; (c) the remainder of KRW 3 billion was paid and received at the time of a contract; and (d) the lease term was fixed from April 1, 2012 to March 31, 2014 (hereinafter “instant lease”). (d) of the foregoing special terms and conditions of the said lease agreement, the Defendant determined that “a lessee and a lessee are able

C. Pursuant to the instant lease agreement, the Defendant paid KRW 4.2 billion as the lease deposit to C on February 27, 2012, and KRW 3 billion on February 29, 2012, respectively.

D. C and the Defendant concluded a contract for the comprehensive takeover of business (hereinafter “instant takeover of business”) on March 23, 2012, and its main contents are as follows.

C (hereinafter referred to as "transferee") and the defendant (hereinafter referred to as "transferee") agree to take over the business as follows and enter into this contract.The purpose of this contract is to transfer the business (hereinafter referred to as "acquisition") within D and its related assets and liabilities, and all other rights and obligations (hereinafter referred to as "subject to taking over") among the businesses carried on by the transferor as of the base date of acquisition, and to provide for the provisions necessary for taking over the business from the transferor.Article 3 (Basic Date of taking over the business)

all kinds of private companies

Considering that

1. The base date of the transfer under this contract is May 10, 2012.The transfer price related to the business taken over (the price of transfer and payment method) ① the transfer price related to the business taken over by an outside appraisal organization (hereinafter referred to as “transfer price”) shall be 11 billion won in total with the appraised amount of the outside appraisal organization (the proviso is omitted).Article 9 (Succession to Employment) (1) The transferee succeeds the transferor’s employee (hereinafter referred to as “employee subject to succession”) to the transferee’s employee on the base date of the transfer. This contract takes effect from the date of conclusion of this contract on the condition that the transferee obtains the approval of the general meeting of shareholders.If the transferee intends to modify the terms of this contract, the contract may be modified only by a written agreement between the parties concerned. Notwithstanding Article 15 (Cancellation of Contracts and Compensation for Damages) Section 1, even after the date of transfer, the transferee and transferee may not cancel this contract unless the transferor agree otherwise.

E. The acquisition price of the instant transfer shall also be divided into KRW 11 billion in down payment of KRW 9 billion in the contract and KRW 2 billion in the remainder, and the Defendant agreed to substitute the payment of KRW 7.2 billion in the down payment of KRW 9 billion in the lease deposit under the instant lease contract. On March 23, 2012, the Defendant paid the remainder of KRW 1.8 billion in the down payment to C.

F. C and the Defendant changed Article 17 of the instant contract for the transfer of business on April 3, 2012 as follows.

Article 17 (Cancellation of Contract and Compensation for Damages) (3) Where the total purchase price of shares to be paid by both parties exceeds 300 million won due to the exercise of appraisal rights by shareholders after approval of the contract for takeover by the general meeting of shareholders, both parties

the Corporation.

(4) Except as provided for in paragraph (3), no business takeover may cancel this contract, unless the transferor and transferee agree otherwise.

G. On May 9, 2012, the Defendant held a temporary general meeting of shareholders and presented the instant acquisition of the business as a subject matter of approval of the contract, but rejected. Accordingly, the Defendant, on August 14, 2012, rated KRW 7.2 billion out of the acquisition price paid to C in the half-yearly report as the lease deposit against C, and appropriated KRW 1.8 billion as advance payment.

H. On January 4, 2013, G and C concluded a mortgage contract with the debtor as E Co., Ltd. regarding the instant real estate owned by G and C, with the maximum debt amount of KRW 54 million, and completed the registration of the creation of each of the instant mortgage claims in the name of G (hereinafter “instant mortgage”).

I. On April 17, 2013, the F Co., Ltd., a company whose business purpose is the Defendant and the lodging business, etc. (hereinafter referred to as “F”) entered into an operating agreement on the instant real estate, etc. (hereinafter referred to as “instant operating agreement”). The main contents are as follows.

Defendant (hereinafter referred to as “A”) and F (hereinafter referred to as “B”) enter into a contract as follows with respect to the operation of Party A’s Class D Ri and C, located in Gangwon-gun.Article 2(a) of the Foreign Service Agreement provides B with the right to benefit from the use of D hotel, neighborhood living facilities and golf membership-related website, etc. owned by Party A, and Party B provides B with the right to benefit from the use of D hotel, neighborhood living facilities and golf membership-related website, etc., and Party B carries out the work related to the calculation and responsibility of Party B by using it. 2. Party B provides D and C’s price provided by Party A as the basic usage fee and facility usage fee. 3. D’s product planning, sale, and any legal and economic liability arising in relation thereto.

Article 4(Adjustment of Facility Use Fees and Cost)1. B provides that the basic usage fee of KRW 1 million (VAT separate) shall be paid at the end of each month at the cost of the use of the facility of Party A. In addition, for camping teams among the organization of the facility, KRW 1 million per month (VAT separate) shall be paid.2. B. Article 2(2) shall be the facility usage fee provided to Party A in accordance with Article 2(2).The term of the contract shall be from May 1, 2013 to December 31, 2018:

(j) On July 2014, the Plaintiff acquired the instant collateral security and the secured debt thereof from G.

【Fact-finding without a dispute over the ground for recognition, Gap evidence 1 through 5, 9 (if there are provisional numbers, referring to the issuance of branch numbers; hereinafter the same shall apply), Eul evidence 2, 5 and 9, and the purport of the whole pleadings

2. The parties' assertion

A. The plaintiff's assertion

1) The Defendant does not have the secured claim of KRW 9 billion against C, and even if such secured claim exists, it does not constitute a claim arising from a commercial activity between merchants.

2) After the establishment registration of the instant real estate was completed, the Defendant acquired possession of the instant real estate. Even if the Defendant acquired the possession of the instant real estate before the establishment registration of the instant real estate was completed, the Defendant lost such possession on May 1, 2013.

3) Therefore, given that there is no commercial lien on the instant real estate by the Defendant, the existence of the father is sought to confirm.

B. The defendant's assertion

1) On May 9, 2012, the Defendant’s acquisition of the instant transfer of business at a special shareholders’ meeting held that the instant transfer of business would result in the cancellation of the said contract under Article 17(3) of the said contract, and the Defendant acquired the claim for return of the acquisition price of KRW 19 billion against C, which constitutes a claim arising from commercial activities between merchants.

2) From February 27, 2012 to April 30, 2013, the Defendant directly occupied the instant real estate according to the instant lease agreement. From May 1, 2013 to December 31, 2014, the Defendant directly occupied the instant real estate through LF in accordance with the instant operating agreement. From January 1, 2015 to December 31, 2016, the Defendant directly occupied the instant real estate through H. From January 1, 2017 to December 31, 2016.

3) Therefore, the Defendant has a commercial lien on the instant real estate (hereinafter “the instant lien”) by making a claim to return the acquisition price of KRW 9 billion against C as the secured claim.

3. Determination

A. In a passive confirmation lawsuit, if the Plaintiff asserts to deny the fact that the cause of debt arises by specifying the Plaintiff’s claim first, the Defendant, the obligee, bears the burden of asserting and supporting the fact that the legal relationship exists. As such, the Defendant ought to assert and prove the fact that the existence of the right of retention is verified in a lawsuit seeking confirmation of the absence of the right of retention (see Supreme Court Decision 2013Da99409, Mar. 10, 2016).

Where a prior mortgage has already been established on real estate owned by an obligor, the commercial lien holder may oppose the obligor and the subsequent obligor against the transferee of the real estate or against the person to whom the limited real right has been established. However, in relation to the purchaser who acquired the real estate in a voluntary auction procedure based on the prior mortgage or prior auction procedure based on the prior mortgage, the commercial lien cannot be asserted (Supreme Court Decision 2010Da57350 Decided February 28, 2013).

B. Whether the Defendant has a claim to return the acquisition price of KRW 9 billion against C

1) The Defendant asserts that the instant transfer of business was also rescinded under Article 17(3) of the contract.

However, Article 17 (3) of the above contract is a provision concerning the contract for business takeover after the general meeting of shareholders approves the contract for business takeover. Since the defendant's temporary general meeting on May 9, 2012 rejected the approval of the business takeover of this case from the provisional general meeting of shareholders as seen earlier, there is no room for applying Article 17 (3) of the above contract to this case.

Therefore, the Defendant’s above assertion is without merit. However, according to Article 374(1)3 of the Commercial Act, if a company takes over all or part of the business of another company which has a significant effect on the company’s business, a special resolution of the general meeting of shareholders shall be required, and if there is no special resolution of the general meeting of shareholders, the contract for the takeover of business also becomes null and void (see Supreme Court Decision 2013Da38633, Oct. 15, 2014). Since the instant contract for the takeover of business appears to fall under Article 374(1)3 of the Commercial Act, since the Defendant’s temporary general meeting of shareholders was rejected the case of the above contract approval at May 9, 2012, the said contract becomes null and void (According to subparagraph 5-1 of the evidence No. 5, the Defendant also becomes null and void in this case’s transfer of business.”

2) Since the business takeover of this case also becomes null and void of the contract, the defendant has the right to claim the return of unjust enrichment equivalent to the amount of the acquisition price paid under the above contract. The defendant's assertion can be seen as claiming the right to claim the return of unjust enrichment as the secured claim of this case, and thus, it will be examined as to its propriety.

As seen earlier, the Defendant’s acquisition price of KRW 7.2 billion, out of KRW 9 billion paid to C, decided to substitute for payment of the deposit for lease under the instant lease agreement. The acquisition of the instant transfer of business is an agreement with the condition that the contract takes effect. As such, the acquisition of the instant transfer of business becomes null and void, the effect of deeming the said KRW 7.2 billion as the acquisition price was not achieved due to the failure to fulfill the condition of suspension. Therefore, the said KRW 7.2 billion cannot be deemed to have the claim for return of unjust enrichment equivalent to KRW 7.2 billion against C (Article 7.2 of the instant lease agreement) (Article 7.2 of the special contract of the instant lease agreement of this case provides that “if the lease and the lessee comply with the condition that the acquisition of the instant transfer of business, the lease and the lessee may terminate this agreement and take over the instant transfer of business, as seen earlier, there is no evidence to acknowledge the termination of the instant lease agreement or the instant transfer of business, and it is still valid in the instant lease agreement of this case.

Therefore, there is no claim for the return of unjust enrichment of KRW 7.2 billion against the Defendant C (if the Defendant asserts that the claim for the return of the lease deposit of KRW 7.2 billion against C was the secured claim of the right of retention, the above claim for the return of the lease deposit accrues only on March 31, 2014, which is the expiration date of the instant lease contract, and the Defendant cannot set up against the Plaintiff as the prior mortgagee with the commercial lien established at that time).

However, on March 23, 2012, the Defendant paid the remaining down payment of KRW 1.8 billion to C in accordance with the contract, and as the above contract becomes null and void, the Defendant acquired a claim for refund of the unjust enrichment of KRW 1.8 billion against C.

C. Whether the Defendant’s claim for return of unjust enrichment of KRW 1.8 billion against C constitutes a claim arising from a commercial activity between merchants

1) According to Article 58 of the Commercial Act, only a claim arising from a commercial activity between merchants can be a secured claim for commercial lien. As the defendant and C constitute both merchants, we examine whether the above claim for return of unjust enrichment constitutes a claim arising from commercial activity.

2) The Supreme Court held that the claim for compensatory damages, which the buyer acquired against the buyer, constitutes the "claim arising from the commercial act" under Article 58 of the Commercial Act due to the impossibility of performing the obligation to transfer the ownership of the buyer in accordance with the contract for sale in lots (Supreme Court Decision 2010Da57350 Decided February 28, 2013).

Meanwhile, the main text of Article 64 of the Commercial Act provides for the extinctive prescription of a commercial claim by stating that "if this Act does not provide for otherwise, the extinctive prescription shall be terminated if it is not exercised for five years." In this context, the meaning of "claim arising from the commercial act" includes not only a claim arising from a direct commercial activity but also a damage claim arising from the non-performance of an obligation arising from a commercial activity (Supreme Court Decision 97Da9260 delivered on August 26, 1997), and the right to restitution arising from the rescission of a contract which is a commercial activity is also subject to the extinctive prescription of a commercial claim under Article 64 of the Commercial Act (Supreme Court Decision 93Da21569 delivered on September 14, 1993). However, if the commercial claim is "the need to be promptly resolved as to the prescription of the right to claim the return of unjust enrichment arising from the invalidation of a contract which is caused by a commercial activity, it shall be considered that the civil prescription is applied, unless there is a need to do so.

As such, the damages claim established due to the non-performance of an obligation arising from a commercial activity falls under the "claim arising from an act under Article 58 and Article 64 of the Commercial Act" is naturally interpreted. However, the view that the right to claim the return of unjust enrichment arising from the invalidation of a contract falling under a commercial activity is naturally arising from ① the contract based on a contract falling under a commercial activity, and ② the legal relationship arising from a commercial activity is liquidated and there is no difference in the right to claim restitution due to a cancellation of a contract, ② the right to claim the return of unjust enrichment falls under the "claim arising from an act". ① The right to claim the return of unjust enrichment is the legal claim arising from the provisions of the law, ② the right to claim the restoration of the past state intentionally by an actor who is a merchant, and this has the nature of an act falling under a commercial activity or a commercial activity. On the other hand, the invalidation of a contract does not fall under the "claim arising from an act" in that it is irrelevant to any act of the merchant.

3) If so, whether the right to claim for the return of unjust enrichment arising from the invalidation of a contract which constitutes a commercial activity constitutes a "claim arising from an act under Article 58 of the Commercial Act" cannot be determined by the literal interpretation alone, and it shall be determined in consideration of the legislative intent of the commercial lien. It is reasonable to view that the above right to claim for the return of unjust enrichment arising from the provisions of law does not constitute a "claim arising from an act under an act," which is the secured claim of the commercial lien, as long as a transaction between merchants takes place in order to secure the trust and secure the trust, if a security is created in accordance with the principles of the Civil Act whenever the transaction takes place between merchants, the procedure is made so as to secure the trust, and not only is it easy to implement it, but also it can be interpreted that the demand for a security made once by every transaction itself may affect the transaction, and thus, it can be interpreted that the right to claim for the return of unjust enrichment does not fall under the "claim arising from an act

Therefore, the defendant's claim for return of unjust enrichment of KRW 1.8 billion against C does not correspond to the "claim arising from the commercial act, which is a secured claim under commercial lien." Therefore, the defendant's claim for lien with the above claim as the secured claim is without merit.

4. Conclusion

Thus, the right of retention of this case does not exist, and the plaintiff's claim should be accepted on the grounds of its reasoning. The judgment of the court of first instance, which has different conclusions, is unfair, and this is revoked and it is so decided as per Disposition.

Kim Jae-ho (Presiding Judge)

Park Sung-gu

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