Seoul High Court Decision 201Na1448 delivered on August 1, 201

T&C Co., Ltd. (LLC, Kim & Lee LLC, Attorneys Ba-young et al., Counsel for the defendant-appellant)

March 12, 2013

Seoul Central District Court Decision 2011Gahap111393 (Main Office), 2012Gahap13175 (Counterclaim) Decided June 21, 2012

1. The part of the judgment of the court of first instance against the plaintiff (Counterclaim defendant) regarding the principal lawsuit shall be revoked.

It is confirmed that the Plaintiff (Counterclaim Defendant)’s obligation to return each member deposit stated in [Attachment 1] No. 101 to 212 to the Defendant (Counterclaim Plaintiff) does not exist.

2. The part against the Plaintiff (Counterclaim Defendant) regarding the counterclaim in the judgment of the court of first instance is revoked, and the Defendant (Counterclaim Plaintiff)’s counterclaim claim corresponding to the above revoked part is dismissed.

3. All appeals filed by the Defendant (Counterclaim Plaintiff) regarding the principal lawsuit and counterclaim in the judgment of the court of first instance are dismissed.

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

1. Purport of claim

A. Main lawsuit: It is confirmed that there is no obligation to return each member deposit as stated in the attached Table 1 to the Defendant (Counterclaim Plaintiff; hereinafter “Defendant”) of the Plaintiff (Counterclaim Defendant; hereinafter “Plaintiff”).

B. Counterclaim: The plaintiff shall pay to the defendant 27,904,294,00 won with 5% interest per annum from August 13, 2011 to the service date of a copy of the counterclaim of this case, and 20% interest per annum from the next day to the day of complete payment.

2. Purport of appeal

A. The plaintiff is as ordered.

B. Defendant: The part against the Defendant regarding the principal lawsuit in the judgment of the court of first instance shall be revoked, and the part against the Defendant falling under the above revocation shall be revoked. The part against the Defendant falling under the order to pay the following among the counterclaim in the judgment of the court of first instance shall be revoked. The Plaintiff shall pay to the Defendant 24,115,300,000 with an annual amount of 5% from August 13, 201 to the service date of a duplicate of the counterclaim in this case and 20% interest per annum from the next day to the day of complete payment.

1. Basic facts

A. The relationship between the plaintiff and the defendant

The Plaintiff (mutual name of the Plaintiff was changed from the “mutual sound development of the Company,” to the “Non-U.S. Non-S. Non-S. Co., Ltd.’ on November 1, 2002; on May 6, 2011, to the “Non-U.S. Non-S. Non-S. Non-S. Non-S. Non-S. Non-S. Non-S. Co., Ltd.’s Non-S. Non-S. Non-S. Non-S. Co., Ltd.’s business”; and on September 5, 2011, to the “S. Non-S. Non-S. Non-S. Co., Ltd.’s Non-S.

The Defendant (the trade name was changed from “inter-stock company” to “ Trob franchise” on March 10, 2006, and on May 2, 2009, respectively) was the Plaintiff’s parent company (a parent company). Around October 16, 1997, both the Plaintiff and its affiliated companies (hereinafter “Trob Construction”) were processed as well as the final parts of the Plaintiff’s parent company.

B. Commencement of company reorganization procedure for the plaintiff

On September 10, 1998, the company reorganization procedure was commenced as Seoul District Court 98No4485, and Nonparty 1 was appointed as administrator (the defendant also commenced the company reorganization procedure as of the same day, and the above non-party 1 was appointed as administrator). In the company reorganization procedure for the plaintiff on October 23, 1998, the defendant reported the total amount of KRW 135,828,295,295,92 as reorganization claim, total amount of KRW 120,601,065,414 as the reorganization claim on October 23, 1998, and interest amount of KRW 15,227,227,230,578 as the reorganization claim on November 3, 1998.

However, the Defendant did not make any report on the Plaintiff’s non-contributing membership rights, and the same applies to the Plaintiff’s reorganization program established by the Plaintiff’s administrator, which is classified as an affiliated company. Accordingly, the Plaintiff’s reorganization program was adopted by the third meeting of interested parties on August 12, 199 and approved by the reorganization court on the same day (hereinafter “the first reorganization program of this case”). In the reorganization program, the Defendant classified the above reorganization claim reported by the Defendant as a reorganization claim of an affiliated company and converted the total amount into equity or exempted it (Article 3 Section 5 of Chapter 5 of Chapter 3), and the reorganization claim regarding non-contributing membership rights can be refunded in full after the expiration of the period of the reorganization program, and there was no entry of the Defendant’s membership rights in the details of the reorganization claim regarding membership rights (Article 4 Section 1 of Chapter 3).

C. Alteration of company reorganization plan against the plaintiff

On September 6, 2001, Nonparty 2, appointed as the manager of the Plaintiff on September 6, 2001, determined that the repayment of obligations such as reorganization claims is impossible due to the Plaintiff’s own ability and promoted the acquisition of a third party against the Plaintiff in consultation with the reorganization court. Accordingly, the agreement was concluded between the Plaintiff and the Plaintiff on November 15, 2001, in which the consortium, including Korea Electric Cable Co., Ltd. (hereinafter “Korean Electric Co., Ltd”) was selected as the priority negotiation subject, and the agreement was concluded between the Plaintiff and the above consortium, and the former Electric Cable acquired the management rights of the Plaintiff. In addition, at that time, the Defendant has also secured the management rights of the Defendant as to the result of the implementation of M&A by M&A.

Upon the conclusion of the above underwriting agreement, the Plaintiff’s administrator submitted the revised reorganization plan to the reorganization court on January 14, 2002, reflecting the contents of the agreement. The reorganization court decided that the revised reorganization plan is not less than 10,00 creditors of the “other reorganization creditors group,” who are non-voting members, and it is obvious that the consent of the holder of voting rights above the statutory amount would not be obtained, and that the revised plan would not be obtained by the consent of the holder of voting rights above the statutory amount, and on February 19, 2002, was repealed by Article 234(2) and (1) of the former Company Reorganization Act (amended by Act No. 7428, Mar. 31, 2005; hereinafter the same shall apply as attached Table 4); and thereafter, on March 13, 2002, approved the amendment of the reorganization plan to the reorganization plan with the consent of not less than 20 of the reorganization creditors’ rights protection requirements and 200 other reorganization creditors.

According to the revised reorganization plan of this case, the above reorganization claim reported by the defendant was dealt with without a big difference from the initial reorganization plan of this case (Article 3 Section 1 of Chapter III), but the contents of the right are reduced by returning only 70% of the member security deposit upon the arrival of a certain date, while guaranteeing the same right as the reported member security right (Section 5 of Chapter III), which is attached to the revised reorganization plan of this case (hereinafter referred to as the "general list of this case"), the "general list for changing the rights of the non-member club claims" (hereinafter referred to as the "general list of this case"), which is attached to the revised reorganization plan of this case, was 212 member rights (hereinafter referred to as the "this case"), written in the attached Table 1 attached hereto, and the individual member rights were written in the attached Table 1 by the sequence No. 1 of attached Table 1 as the defendant's membership rights.

D. Defendant’s claim for refund of membership deposit

On October 15, 2002, the reorganization court authorized the completion of the company reorganization procedure for the Plaintiff. Thereafter, the Korea Electric Cable, together with the management right for the Plaintiff and the Defendant, acquired a house for father-young Co., Ltd. (hereinafter “unyoung Housing”) on April 20, 201, and the Plaintiff and the Defendant became different between the Plaintiff and the management right holder. The Korea Electric Cable and the Defendant claimed the return of the membership deposit from April 27, 201 to August 12, 201.

[Basis] Facts without dispute, Gap 1 through 12, 18, 20, 21 evidence, Eul 1, 9 through 11, 14, 18, 20, 27 through 29 (including paper numbers) and the purport of the whole pleadings

2. Grounds for the claim;

(a) Main claim;

Although the instant membership rights were not legitimately acquired or forfeited by the Defendant, the Defendant sought the return of the instant membership deposit to the Plaintiff. Therefore, it is sought to confirm that there is no obligation to refund the Plaintiff’s membership deposit to the Defendant.

① In the process of receiving financial support from the Defendant, etc., the Plaintiff only entered into accounts as if the Defendant had the instant membership, and the Defendant did not pay the said membership deposit, etc., and thus, the Defendant cannot be deemed to have lawfully acquired the instant membership upon issuance of it normally.

② Even if not, the Defendant did not report the instant membership in the company reorganization procedure for the Plaintiff as a reorganization claim, and thus, the instant membership was forfeited.

③ In addition, among the memberships in this case, membership rights dealt with by the defendant after the commencement of company reorganization procedure of the plaintiff are rights to have been reported as reorganization claims, etc.

(b) Counterclaim;

The defendant has continuously acquired the membership of this case and has continued to hold it after the commencement of the plaintiff's company reorganization procedure as follows. Therefore, the plaintiff is obliged to pay the sum of the membership deposits after the alteration of the right to the defendant under the amended reorganization plan of this case and the total sum of the membership deposits after the alteration of the right to the defendant under the amended reorganization plan of this case, and the delay damages from August 13, 201, which is the day following the final demand date.

① At the time of the commencement of the company reorganization procedure against the Plaintiff, there is more than 10,00 members of the non-registered association, and it is impossible for all of them to report and exercise their voting rights. Thus, the Plaintiff’s administrator is to protect the membership by reflecting the membership in the reorganization claim en bloc, and the Defendant et al. must not report membership rights. Accordingly, the first reorganization plan of this case added the phrase “, etc.” without indicating only the membership holders (Article 1 subparag. 8 of Chapter 3), and the term “charters, etc.” to protect the Plaintiff’s non-reported membership rights by including the membership deposit in the “lease deposit, etc.” (Section 6 of Chapter 3). Therefore, regardless of whether the membership of this case was reported, it cannot be deemed as having been forfeited since it was reflected in the first reorganization plan of this case.

② In addition, even if the membership of this case was forfeited due to a failure to report, it is meaningful to the extent that it was impossible to enforce the fulfillment of the right, and where the modification of the reorganization plan was approved to recognize in the future the forfeited right pursuant to Article 270(1) of the former Company Reorganization Act, the modification of the reorganization plan is valid. Therefore, among the memberships of this case, the first through 100 memberships of this case listed in the general list of this case were established as a valid reorganization claim pursuant to the reorganization plan of this case.

③ Meanwhile, although the membership rights of this case were not specified in the modified reorganization plan, since the plaintiff's company reorganization procedure was commenced on December 1, 1998 through August 13, 2002, at the time of the commencement of the company reorganization procedure due to the relationship where membership rights begin on August 13, 2002, the plaintiff's administrator constituted a right to an executory contract under Article 103 (1) of the former Company Reorganization Act. Since the plaintiff's administrator did not cancel or terminate the contract related to the above membership rights, the right to refund the membership deposit related to the above membership rights became a public-interest claim under Article 208 (7) of the former Company Reorganization Act.

④ In addition, the Plaintiff intentionally failed to report the membership of this case and reflected it in the modified reorganization plan of this case. For more than ten years thereafter, the Plaintiff approved the Defendant’s claim for the refund of the membership deposit by allowing the Defendant to use the membership of this case normally. Therefore, denying the Defendant’s membership status through the realization of the status of affiliated companies after the liquidation of the Plaintiff’s membership is contrary to the doctrine of speech and good faith and the principle of good faith.

3. Judgment (to judge both a principal lawsuit and a counterclaim);

A. The defendant's acquisition of membership of this case

In full view of the overall purport of the arguments in Gap evidence 13 through 19, Eul evidence 2, 6 through 8, 13, 14, and 33 (including paper numbers), the following facts can be acknowledged as to the defendant's acquisition of membership of this case.

① As to the membership of this case 1 to 33, a membership contract or a succession contract for each of the relevant items listed in the attached Table 1 (as to the membership of this case, the contract for the membership of this case was not submitted, but it seems that there is no dispute over the preparation of the membership contract, although the contract for the membership of this case was not submitted with respect to the membership of this case 8). However, the agreement for the membership of this case 15 to 26 is written prior to December 1, 1990 or December 1, 1991, which is indicated as the date of conclusion of the contract, even though there is no indication that it is a succession contract.

② With respect to membership (48, 768 unit units), the agreement for membership (15) and agreement for membership (15) are prepared as of June 24, 1995 at one time as of June 24, 1995 at one time, and the agreement for membership is stated that total of KRW 22,732,80,000,000 was paid on that day. This was the substitution of the funds provided by the Plaintiff from the Defendant for the payment of the above membership deposit (Evidence 14) (Evidence 14). On the other hand, the date when the Plaintiff entered into the agreement for membership (Evidence 8) through 81 on August 24, 2002.

③ Although the Plaintiff’s membership agreement is not submitted with respect to the instant golf membership, the Defendant’s computerized registration is recorded as having the same membership as that stated in attached Table 1. On July 14, 1997, the Defendant paid the Plaintiff KRW 5,000,000 to the Plaintiff with the golf membership fee, and approved the Plaintiff’s commercial paper (CP) that comes into maturity with the funds, each of the said golf membership is acquired by the Defendant as such.

④ The Plaintiff did not submit a membership agreement with respect to the instant golf membership. However, the Plaintiff’s computerized computerized registration was entered into with the Defendant holding the same membership as that stated in the separate sheet No. 1. On August 2002, the Plaintiff: (a) around 200,500,000 won including the said golf membership 19 and one golf membership number 108573; and (b) on September 30, 1997, both construction deposited to the Plaintiff on September 30, 199; (c) the Defendant transferred the Plaintiff’s right to KRW 20,000 (20,000 x 1,000 x 60 x 1,000) that was unpaid by the Defendant (the above golf membership number No. 16-1,200).

⑤ With respect to membership under Articles 120 through 144 of the instant case, all of the membership agreements were made on March 16, 1998 (A evidence 34 through 58). However, each of the above membership agreements stated that all of the member deposits was made in full on September 30, 1997, before the date of entering into the contract. As seen earlier, the Defendant also entered into the company reorganization procedure on September 10, 1998, and Nonparty 1 concurrently served as the Plaintiff and the Defendant’s administrator. Nonparty 1 was appointed on June 12, 1998 as the Defendant’s protective custodian prior to the commencement of the company reorganization procedure, and on March 16, 1998, Nonparty 1 was signed on March 16, 1998 as the Defendant’s column for each of the above member contracts signed on March 16, 1998.

④ With respect to the membership under Articles 145 through 208 of the instant case, a membership agreement was prepared as of August 13, 2002 (No. 59 through 122 of the instant membership agreement). Each of the above membership agreements entered into with the Plaintiff as of December 1, 1998. The agreement entered that the Plaintiff paid in full the membership deposit as of December 1, 1998, which was about August 2002, the Plaintiff paid in full for KRW 1,566,40,00 for the total amount of KRW 1,566,36,000 for the above 64,000 for both construction deposited to the Plaintiff on September 30, 197, and the remaining amount of KRW 64,00 (No. 64 x 1,000) was unpaid by the Defendant (No. 64 x 600 x 1,000).

7) As to the membership fee of this case as of November 18, 1998 and as to the membership fee of this case 210 through 212, each contract for membership is prepared as of March 16, 1998 (A evidence 123 through 126). However, the membership deposit of this case No. 209 and 212 is written as of December 15, 1997, and the membership deposit of this case No. 210, 211 is written as of September 30, 197. The Defendant column of the contract for membership of this case 212 is written as of September 30, 1997, and the seal of Nonparty 1 is affixed as above.

As such, the defendant acquired the membership in this case in lieu of paying the membership deposit, etc. of the membership in this case or acquiring the right of both parties to the plaintiff in lieu of paying the existing bonds held by the plaintiff, or acquiring the membership in this case by transferring the right to the plaintiff. In addition, a membership agreement which is a disposal document concerning the membership in this case is prepared or the defendant was registered as a membership in the plaintiff's computer system. Therefore, the defendant can hold the right to return the membership deposit in this case, barring special circumstances.

In regard to this, the Plaintiff pointed out that the Defendant’s payment of the membership deposit is prior to the date of entering into a contract, or that the date of payment of the membership deposit or the date of commencement of the membership is affixed with the seal of Nonparty 1’s protective custodian, who was not yet appointed in the Defendant column of the part of the contract for membership, and that the instant membership membership was operated as if the Defendant held it only due to the Plaintiff’s account settlement. However, the Defendant’s acquisition of the Plaintiff’s membership does not prohibit the Plaintiff’s acquisition of the Plaintiff’s membership by substituting the repayment of the existing claim against the Plaintiff, but it is difficult to conclude that the Defendant’s acquisition of the Plaintiff’s membership does not constitute a result of the operation of the account book, on the ground that there are circumstances that the date of entering into a contract is suspected to have been written differently from the actual date of the contract. Therefore, this part of the Plaintiff’s assertion

(b) Forfeiture of rights due to failure to report membership rights;

In order for a creditor to participate in reorganization proceedings, he/she shall report his/her claim within the reporting period under the former Company Reorganization Act (Article 125), his/her reported claim is confirmed as a reorganization claim through investigation procedures or litigation for finalization of reorganization claims (Articles 135, 143, 144, 145, 147), and the right as a reorganization creditor under the provisions of the reorganization plan is recognized only for a person holding a finalized reorganization claim (Article 243). Thus, any claim that does not undergo the above reporting and confirmation procedures shall be extinguished at the time when the approval of the reorganization plan is decided (Article 241).

In the company reorganization procedure for the plaintiff, the defendant did not make any report on the non-member rights, and accordingly, the first reorganization plan of this case approved on August 12, 1999 did not enter the defendant's member rights in the details of the reorganization claim regarding member rights. However, on September 10, 1998, the defendant had the first through 100, 120 through 14, 209 through 212 member rights of this case, which had already been completed before the company reorganization procedure for the plaintiff was commenced, and they were forfeited due to the defendant's failure to report (in the case of the above 79 through 81 member rights of this case, the date of concluding the contract on August 24, 200, the date of signing the company reorganization procedure of this case was prepared as the contract on November 18, 199, and the date of signing the company reorganization contract of this case was also prepared after the date of signing the company reorganization procedure of this case, and the defendant's new member rights were purchased after the date of the contract of this case.

In relation to the time of acquiring membership rights, the defendant asserted that in the case of membership rights in Articles 120 through 144, 209 through 212 of the above case, the date of the plaintiff's company reorganization procedure commenced on September 10, 1998, the claim for the refund of membership deposit was not yet definitely created after the plaintiff's company reorganization procedure commenced, and that with respect to these membership rights, the plaintiff's administrator did not cancel or terminate the contract even if both parties could cancel or terminate the contract under Article 103 (1) of the former Company Reorganization Act for non-performance bilateral contract, and the claim for the refund of membership deposit was a priority claim under Article 208 (7) of the former Company Reorganization Act for non-performance of both parties under Article 103 (1) of the former Company Reorganization Act, "a bilateral contract between the company and the other party has not yet completed its implementation at the time of the company reorganization procedure," and that the contract for the payment of membership deposit already completed by the defendant had been in the status of the plaintiff's obligation to commence the above company reorganization contract.

In addition, the starting date of membership is only the time for starting the use of the cooking facilities as a non-member of the non-conceptt (Article 109(1) of the former Company Reorganization Act provides that the starting date of membership shall be the same as that of the defendant's obligations, or whether the defendant's obligation is completed or his/her membership is acquired. Accordingly, the defendant's assertion that the right to return the membership deposit falls under the "right to property arising from the cause of the commencement of the reorganization procedure" under Article 102 of the former Company Reorganization Act, and it cannot be deemed that the right to return the membership deposit constitutes a public-interest claim under Article 208 subparagraph 7 of the former Company Reorganization Act, since the right to return the membership deposit constitutes a public-interest claim under Article 208 subparagraph 7 of the former Company Reorganization Act, which is a member's non-performance agreement.

Meanwhile, there is no evidence suggesting the Defendant that the Plaintiff’s administrator should report membership rights to the non-contributing members of the non-contributing group, regardless of whether it is impossible to report membership rights, or that the Plaintiff’s administrator should reflect membership rights as a reorganization claim, or that the Defendant used not to report membership rights to the Defendant, etc. In full view of the purport of the argument in the statement in Gap’s evidence No. 2, the Korea Electric Power Corporation, etc., upon reporting their membership rights as a reorganization claim and designating them as “non-contributing members” in the first reorganization plan of this case (Article 1(8) of Chapter 3), and only can it be recognized that the details of membership rights of these non-contributing members are separately attached to the first reorganization plan of this case as a reorganization claim. Even if the Plaintiff’s administrator reflecteds membership rights as a reorganization claim regardless of whether they reported the non-contributing membership rights, the Plaintiff’s decision does not naturally protect the Plaintiff’s non-contributing membership rights as a reorganization claim, and even if the Defendant did not report the Plaintiff’s.

In addition, deeming that the “lease Deposit, etc.” in Section 6 of Chapter 3 of the first reorganization plan of this case includes the “Lease Deposit, etc.” is not only unreasonable interpretation by the language and text of the “Lease Deposit, etc.,” but also the Defendant’s assertion that, as seen earlier, the first reorganization plan of this case has a separate provision regulating the right to lease free interest, the non-reported membership is also included in the “Lease Deposit, etc.”.

C. Validity of membership registered in the reorganization plan for the modification of this case

As seen earlier, the existence and scope of reorganization claims shall be determined through the report of claims, investigation procedures of reorganization claims, or litigation for finalization of reorganization claims. The reorganization plan only provides for how to change and repay the rights of the rights established or to be established (see Supreme Court Decision 2006Da77197, Jun. 26, 2008). Moreover, the alteration of the reorganization plan under Article 270 of the former Company Reorganization Act is established externally after the approval of the original reorganization plan is approved, and it is formed in the real process, and it is not subject to claims and stocks before the original reorganization plan is approved retroactively to the time of the original reorganization plan, but it is based on the premise that the establishment of new reorganization plan or new rehabilitation claim by the defendant should not be recognized as being subject to the original reorganization plan at the time of the submission of the new reorganization plan and the result of its execution, and the creation of obligations arising from new transactions (see Supreme Court Order 2006Da744, Nov. 29, 2007). 207.

Meanwhile, even if Article 234(2) of the former Company Reorganization Act provides for the protection provision of rights of the “Article 234(2) that stipulates that the consent of the person holding voting rights more than the legal amount or number may not be obtained, it shall not be interpreted that the forfeited right may not be deemed as a subject of consent required for creditors who do not have voting rights due to failure to report its rights, and that the already forfeited right may not be reinstated as rehabilitation claims, etc. after the fact-finding. Therefore, even if the right protection provision that allows the same treatment as the reported members pursuant to the revised reorganization provision is in accordance with the permission of the reorganization court pursuant to Article 234(2) of the former Company Reorganization Act, it shall not be deemed that the Defendant’s forfeited right protection provision should be protected as rehabilitation claims, etc., apart from taking mutually beneficial measures to protect the general members. Moreover, the purport of protecting the above rights protection provision that is a large number of general membership members, which would have been protected by the Defendant’s company, as an affiliate company, etc., and it would not be compatible with the purport of the above provision.

Ultimately, it cannot be said that the instant items 1 to 100 memberships listed in the instant overall list according to the instant modified reorganization plan, or other membership claims that the Defendant did not report, or that the Defendant can not exercise the right to refund the membership deposit with respect to those memberships.

D. Whether the case constitutes public interest bonds of 101 to 119, 145 to 208 membership rights

The membership rights of this case 101 to 119, 145 to 208 are treated as being transferred by the defendant around September 30, 1997, and the defendant paid 1,000 won in addition to each of its membership rights and became the defendant's membership rights. Therefore, since the defendant was not holding these membership rights prior to the commencement of the plaintiff's company reorganization procedure, it is difficult to view that it was possible to report them in advance.

However, even if the transfer relation of member deposits, etc. dealt with as above is recognized, it was transferred to the defendant after the commencement of the plaintiff's company reorganization procedure (right to member deposits received prior to the commencement of the plaintiff's company reorganization procedure). Since both sides construction did not report memberships, etc. in the plaintiff's company reorganization procedure, the defendant is subject to the forfeited membership transfer due to the failure of both parties construction report. Therefore, the defendant cannot assert the right to refund member deposits as the rehabilitation claim, etc. against the plaintiff.

In this regard, the defendant asserts to the purport that since the membership deposit of KRW 1,00 per membership was transferred to the defendant in the unpaid state under Article 101 through 119, and 145 through 208 of this case, it constitutes the right to bilateral contract under Article 103(1) of the former Company Reorganization Act, and thus, the right to return the membership deposit constitutes a public-interest claim under Article 208 subparag. 7 of the former Company Reorganization Act.

"Bilateral contract" under Article 103 (1) of the former Company Reorganization Act includes failure to perform part of the obligations when both parties are liable for obligations in a mutually equal relationship (see Supreme Court Decision 2000Da54659, May 16, 2003, etc.). However, the term "Bilateral contract" under Article 103 (1) of the former Company Reorganization Act refers to a contract under which both parties are liable for obligations in a mutually equal relationship, which serves as a security in legal and economic context between the parties, and functions as a security. The provision of a claim as a priority bond in cases where a custodian performs obligations pursuant to the provisions of bilateral contract between both parties under Article 208 subparagraph 7 of the former Company Reorganization Act refers to a claim for the performance of obligations of the other party, thereby maintaining equity between the parties (see Supreme Court Decision 200Da54659, May 16, 200; 205Da36575, May 36, 2007).

Examining the form that each of the above membership deposits of KRW 1,00 with respect to 101 through 119, 145 through 208 of this case was disposed of in arrears, there is room to deem that the failure by one of the above members to perform part of his/her obligation constitutes “when the performance is not completed.” However, the unpaid KRW 1,000 does not have the function of securing the performance of the other member’s obligation as part of each of the above member’s deposit of KRW 125,00,000 through KRW 15,40,000, and it is extremely unfair from the perspective of equity to view that the obligation to pay is in a quid pro quo relationship between the Plaintiff’s obligation to enjoy the rights as a member. Therefore, even if each of the above member’s deposit was disposed of in a state where the outstanding amount of KRW 1,000 is unpaid, it cannot be said that the above member’s obligation to pay the deposit constitutes a priority claim under Article 208 of the former Company Reorganization Act.

Examining more fundamentally, the fact that the Defendant, instead of the amount deposited to the Plaintiff on September 30, 1997, treated the amount of money deposited by the two construction on or around August 2002, as the acquisition of the right in the unpaid state of KRW 1,000 for the membership rights of KRW 100 regarding the Plaintiff on or around August 16, 1992 is an evasion of the law that, as both parties did not report that they had against the Plaintiff, they did not convert forfeited bonds, etc. into the partially unpaid membership deposits and would have been recognized as a public interest claim (i.e., the transfer of forfeited bonds, etc. to the Defendant, but there was no specific circumstance as to when and how both bilateral construction entered into a contract on the above membership rights and paid the membership deposits. Moreover, even if both bilateral construction and the Defendant were dealt with on or around October 16, 1997, it cannot be acknowledged that the Plaintiff did not return the above large amount of claims to the Defendant without reporting the membership rights.

Meanwhile, the Defendant paid KRW 1,00,00 in unpaid amount of KRW 1,00,00 to 119,145, and 208 of this case, and concluded an agreement between the Defendant and the Plaintiff’s administrator to grant these membership rights as public-interest claims. Thus, the Defendant’s claim for the refund of membership deposit is asserted that the claim for the refund of these membership rights was a public-interest claim under Article 208 subparag. 5 of the former Company Reorganization Act, but the said agreement cannot be deemed to have been concluded merely because the unpaid amount of KRW 1,00 was paid. Furthermore, as seen earlier, regarding the above membership rights, the payment of the membership deposit is deemed to have been actually performed before the Plaintiff’s company reorganization procedure commences, and the above measures such as the unpaid amount of KRW 1,000 were an evasion of law to be recognized as

E. Whether the principle of no-competence and the principle of good faith are violated

The provisions of the former Company Reorganization Act stipulating exemption from the unreported reorganization claim are compulsory provisions, and even if the plaintiff reflected the defendant's membership in the modified reorganization plan of this case and allowed the use of membership in the membership before acquiring the non-permanent house on April 20, 2011, it cannot be said that the plaintiff's allegation on this part is against the principle of no-competence or the principle of trust and good faith after becoming a different manager.

F. Sub-decision

Therefore, since all of the membership rights of this case were forfeited by a failure to report, or cannot be recognized as a public-interest claim after transfer of forfeited rights, the defendant cannot seek the return of the membership deposit.

4. Conclusion

Therefore, all of the plaintiff's claims are accepted and all of the defendant's counterclaims are dismissed. Since the part of the judgment of the court of first instance as to the plaintiff's main lawsuit of this case is unfair with different conclusion, the part against the plaintiff as to the main lawsuit of this case is revoked and confirmed that there is no obligation to refund membership deposit of this case 101 to 212, and the part against the plaintiff as to the counterclaim of the judgment of first instance is revoked and the part against the plaintiff as to the counterclaim of the judgment of first instance is revoked and the defendant's counterclaim as to the main lawsuit and counterclaim of the judgment of first instance is dismissed, and all of the defendant's appeal as to the main

[Attachment]

Judges Yoon Jin (Presiding Judge)