2017Na2018581 All proceeds

1. A;

2.D

3G

JRegional Housing Association

Seoul Central District Court Decision 2014Gahap596506 Decided February 10, 2017

March 7, 2018

March 28, 2018

1. The plaintiffs' appeal and the first and second preliminary claims added by this court are all dismissed.

2. The costs of the lawsuit after the appeal are assessed against the plaintiffs.

1. Purport of claim

Main and Preliminarys. The defendant shall be 375,073,99 won against the plaintiff A, and the plaintiff D

1,093,301,424 won, 96,747,135 won, and 20% interest per annum from the day following the day of service of a copy of the complaint of this case to the day of full payment with respect to each of the above money (the plaintiff claimed the full payment, but this court held the claim for the second preliminary claim for the return of unjust enrichment equivalent to the solicitation fee based on the subrogation right of the creditor, and the second preliminary claim based on the subrogation right of the creditor).

2. Purport of appeal

Of the judgment of the court of first instance, the part against the plaintiffs corresponding to the money ordering payment below is revoked. The defendant shall pay to the plaintiffs A 375,073,9 won, 1,093, 301, 424 won, 96, 747, 135 won, and each of the above money, calculated at the rate of 20% per annum from the day following the day of service of the copy of the complaint of this case to September 30, 2015, and 15% per annum from the next day to the day of full payment.

1. Quotation of judgment of the first instance;

The reasoning for this case is as follows, except for adding the judgment as described in Paragraph 2 below with respect to the first and second preliminary claims added by this Court, the reasoning for this case is as stated in the reasoning of the judgment of the court of first instance. Thus, it is acceptable in accordance with the main text of Article 420 of the Civil Procedure Act.

O's 11th of the first instance court's decision (the fifth of the 16th of the 16th "agreement for the Admission of Cooperatives") is raised "a final contribution" as "other than the final contribution."

O Part 15, 3, 17, 19, 21, 21, 17, 15, 15

The "this Court" in the 18th, 19th, 22th, 24th, 4th, 11th, 14, 18, 18, 25th, 3, 7th, 8th, 39, and 44th, shall be the "Seoul Central District Court".

In the first instance court's decision No. 26, the "this court" in the 17th sentence is "the court of first instance".

O The last 26th decision of the first instance court is "2. The summary of the parties' arguments concerning the primary claim".

O up to the last 30 pages 12 through 30 of the first instance judgment.

b) As to the portion of the solicitation agency fee

(1) The execution agency contract before the amendment was amended to the execution agency contract of this case, and only the execution agency contract of this case and the contract of this case concluded between the defendant and M was ratified at the special meeting of the defendant on August 14, 2009. Since the execution agency contract of this case does not include the items of the collection agency fee in the service fee, the defendant is not obliged to pay the collection agency fee to K, and the collection agency fee claim belongs to M rather than K.

(2) Even if the claim for the recruitment agency fee belongs to K solely, M received KRW 2,167,090,000 from the Defendant to the agency fee and the recruitment agency fee, and this is also effective for K as a repayment to the quasi-Possessor of the claim. At the time, the sum of the agency fee and the recruitment agency fee is KRW 2,082,90,554, and the sum of the total service fee is KRW 2,082,90,50,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,00

set-off against any such claim).

(3) If the collection agency fee claim is indivisiblely reverted to K and M, the agency fee claim is also the same, and M has received from the defendant the above 2,167,090,000 won exceeding the above 2,082,90,554 won with the agency fee and the collection agency fee, so if this is settled, the collection agency claim does not remain, and instead, the defendant shall be refunded the amount of 84,188,446 won paid excessively by the defendant (if the collection agency fee and the collection agency fee are not settled automatically as separate claims, the defendant shall be refunded the agency fee and the collection agency fee are offset against the claim to be refunded to K as the automatic claim).

(4) The due date for K’s recruitment agency’s bond was June 16, 2008 when the change of the association was approved on the basis of 250 union members. Since the Plaintiffs filed the instant lawsuit after five years passed from the calendar, the above claim was all extinguished due to the completion of the statute of limitations.

3) Preliminary defenses

Even if K's business service expense claims against the Defendant exist, if the following claims against K are offset against the Defendant's automatic bonds in the following order, the above claims of K were all extinguished:

A) K used the amount equivalent to KRW 2,263,764,040, out of the funds withdrawn from the instant business funds as acquisition tax, etc., to K account from November 15, 2007 to July 31, 2008 without paying acquisition tax of KRW 1,036,687,360, in a place unrelated to the instant business, and incurred damages to the Defendant, including the above delinquent acquisition tax and additional tax of KRW 273,102,780,00,00,000, including KRW 273,102,79,790,000, out of the funds that were withdrawn from the instant business funds. K is the subject of the said embezzlement or P’s employer, and is liable to compensate for the total amount of KRW 1,309,790,140,000 due to the said tort.

In addition, inasmuch as the Defendant and K were in the position of joint borrower at the time of embezzlement of loans equivalent to the above acquisition tax, K, which is one member of the partnership consisting of two members, is liable for damages to the partnership by lowering illegal acts of embezzlement of the above loans, which are the business property of the partnership, and as such, the partnership relationship is terminated and the partnership relationship is terminated, the remaining defendant, who is the member of the partnership, may claim the distribution of residual property in the way of claiming compensation for the above damages.

B) K deposited KRW 422,340,00 on September 14, 2007 with the money withdrawn from the project fund of this case for the payment of land sale price to AH, who was the landowner, and then recovered on September 17, 2007 and embezzled the money for voluntary consumption. The Defendant became a joint borrower on October 29, 2007 with respect to all the loans, including the amount embezzled as above, out of the primary loan debt of this case. On September 11, 2009, K solely assumed the entire loan debt of this case, including the amount embezzled by K, and K solely acquired the above loan debt of this case on September 11, 2009, as an executor, under the contract or good faith principle, as it did not notify the Defendant of the above loan debt of this case regardless of the business of this case, and thereby, K was liable to compensate the Defendant for damages equivalent to the above embezzlement amount.

C) On February 15, 2008, K received 270,000,000 won in the name of the purchase price and arbitrarily consumed the partnership apartment from AI as a result of the purchase price, and thereby, the Defendant was finally and conclusively sentenced to the final and conclusive judgment that “K shall pay the 240,000,000 won and damages for delay to AI.” On March 24, 2008, K is also illegally sold to AJ and arbitrarily consumed the amount of KRW 69,624,00 for the purpose of the purchase price, etc., and the Defendant paid 69,624,000 and damages for delay to AJ” received final and conclusive judgment that “K shall pay 69,624,000 won and damages for delay to AJ”. Due to the tort committed by the Defendant, K has a duty to compensate for each of the above damages to the Defendant.

D) At the time of the enforcement agency contract of this case, K agreed to compensate for the damages claimed by the Defendant in the event that K had an obstacle to the progress of its business due to the occurrence of the project implementation problem, and K agreed to compensate for the damages incurred by the Defendant, and at the time of the establishment contract of the association, at the time of the establishment of the association, K agreed to pay the final contribution only to the members, and to supply one apartment household corresponding thereto, and all profits accrued from the business shall belong to K with the agency fees, and all losses exceeding the final contribution shall be attributed to K. However, K failed to perform the duties under the implementation agency contract of this case as the reasons for its own return, and the Defendant has a duty to compensate for damages equivalent to 2.5 billion won for losses exceeding the final contribution to the Defendant (where the damages claim corresponding to the additional contribution to K is reverted to the members other than the Defendant, the Defendant offset the damages claim corresponding to the additional contribution by the automatic amount of KRW 500,000,000,000,000).

E) At the time of the agreement to compensate for losses of this case entered into with the two Industries, K agreed to cover the N’s profit of KRW 13 billion and KRW 3.5 billion for the business operating expenses of this case, and KRW 16.5 billion for the business expenses of this case. This agreement is a contract for a third party, and K agreed to the third party to express its intent of profit. In addition, K agreed to pay the above money directly to the Defendant on April 10, 2009. Accordingly, K is liable to pay 16.5 billion to the Defendant pursuant to the agreement to compensate for losses of this case or the above agreement on April 10, 2009 ( even if the agreement to compensate for losses of this case or the agreement on April 10, 2009 did not provide that the Defendant shall not pay the above money directly to the Defendant, by failing to implement each of the above agreements, and therefore, K has the obligation to pay the above amount to the Defendant as damages due to default on its obligation).

3. Judgment on the main claim;

O Each "determined Contribution" in the 37th, 15, 16th, and 44th of the judgment of the first instance court shall be defined as "other than the final contribution."

In the first instance court's decision No. 40 No. 5, "it can be inferred," and each statement in No. 66-1 and No. 66-2, which seems contrary to this, is difficult to believe as it is, and there is no other counter-proof to reverse the above ratification (the same shall apply when the base point of time for determining whether or not the profit is anticipated is viewed as around July 2008 or around February 2009, as alleged by the plaintiffs).

C. From No. 42 to No. 43 of the judgment of the first instance court in the Section 14 of the Act No. 42, the term "the instant case" shall be deemed to have been amended to the instant vicarious execution contract and entered into the instant vicarious execution contract in the name of M, and K and M, even though anyone of K and M, at the time of the instant vicarious execution contract, may claim payment of the recruitment agency fee, and even if any of the two companies is paid, it may be deemed that there was an implied agreement between K and M, which takes effect upon the receipt of the entire payment. Therefore, it is reasonable to deem that the claim for the recruitment agency fee under the instant vicarious execution contract in the instant vicarious execution contract was indivisible by declaration of intention, and it was indivisible. Therefore, even if the instant vicarious execution contract was amended to the instant vicarious execution contract in which the item of the recruitment agency fee is not included, and the instant vicarious execution contract was concluded in the name of M, as alleged by the Defendant

In the first instance court's decision No. 45, No. 12, "the claim of this case" through No. 46, No. 13, "the main claim of this case is without merit (as long as the plaintiffs' main claim is dismissed on the ground that the assignment order of this case is null and void, the defendant's remaining arguments, including the defendant's defense of extinctive prescription regarding the part of the recruitment agency fee, are not judged separately)."

2. Judgment as to the First and Second Preliminary Claims added by this Court

1) Grounds for plaintiffs' claims

If the assignment order of this case is null and void, each preservation claim of the above order held by the plaintiffs against K still exists without extinguishing it, and since K is in insolvent at present, the plaintiffs seek the performance of the claim following the collection agency fee held by K in subrogation to the defendant in order to preserve their respective claims against K (However, the plaintiffs did not reduce their preliminary claims in accordance with the 1 and 2 preliminary claims, and are deemed to seek the amount of the primary claim as they are).

A) First Preliminary Claim (Claim for Return of Unjust Enrichment)

The defendant, without any legal ground, has been provided by K with a station for recruiting the defendant's association members by proxy and obtained the defendant's profit at the expense of K to invite the defendant's association members. Thus, the defendant is obligated to return 503,810,000 won, which is the reasonable price for the service provided by K, to K as unjust enrichment.

B) 2 Preliminary Claim (Claim for Solicitation Fee)

If there was an agreement between K and the defendant to pay the recruitment agency fee of KRW 900 million as of the 386 household unit, the defendant is obligated to pay KRW 582,90,000, which is equivalent to the ratio of KRW 250,000 to the above 90,000, which is equivalent to the ratio of KRW 250,000 to the members recruited by K pursuant to the execution agency contract prior to the amendment including the above agreement, after deducting KRW 79,090,00 already received from the defendant.

2) The defendant's assertion

A) As to the first preliminary claim

Since the defendant recruited members after being provided services from M in accordance with the instant agency contract entered into with M, there is no reason for the defendant to return unjust enrichment to K.

B) As to the second preliminary claim

(1) Since this part of the claim was first asserted in the appellate court for the first time, it must be dismissed as it constitutes an attack and defense method in the actual time limit.

(2) On the ground that the right of recruitment agency fee claim against the Defendant (Seoul Central District Court 2010Kahap10539) filed a lawsuit against the Defendant (Seoul Central District Court 2010Kahap10539), but the judgment dismissing such claim became final and conclusive, K again seeking payment of recruitment agency fee claim against the Defendant violates res judicata of the above final and conclusive judgment.

(3) The execution agency contract prior to the amendment was amended to the execution agency contract of this case, and only the execution agency contract of this case and the agency contract of this case concluded between the defendant and M was ratified at the general meeting of the defendant on August 14, 2009. The execution agency contract of this case is not included in the execution agency fee, so the defendant is not obliged to pay the recruitment agency fee to K.

(4) Even if K’s claim for recruitment agency fee is recognized, as seen in the Defendant’s assertion on the primary claim, if M settled the total of KRW 2,167,090,000 paid by the Defendant as agency fee and solicitation agency fee on the basis of the number of the Defendant’s union members, the K recruitment agency fee is not remaining, and 84,188,446 won that the Defendant paid excessively.

If the agency fee and the solicitation agency fee are not automatically set out as a separate claim, the defendant should be refunded (if the claim to be refunded the agency fee is set off with the claim to be paid in excess as the automatic claim), and (B) the defendant terminated due to the lapse of five years from June 16, 2008, the due date for payment, and (c) if the defendant set off each of the claims against K as the automatic claim, the defendant's claim to recruit agency fee against the defendant was extinguished in entirety.

B. Determination on the first preliminary claim

1) At the time of the instant agency contract, if there was an implied agreement between K and M with the Defendant as an indivisible obligee regarding the recruitment agency fee, it is determined as to the primary claim. Therefore, as alleged by the Plaintiffs, even if K, other than M, performed the recruitment agency business of the Defendant’s association members, it shall be deemed that it performed the payment under the instant agency contract. Thus, it shall not be deemed that K can claim the Defendant for the payment of the recruitment agency fee, which is the price for the above service, based on the above contract, regardless of the fact that K can claim for the payment of the recruitment agency fee, which is the price for the above service. However, it shall not be deemed that the Defendant received the above service from K without any legal cause. There is no evidence to acknowledge that the Defendant obtained the benefit without any legal cause in relation to the provision of the recruitment agency business.

2) Therefore, even if there is a difference from the specific legal basis of the plaintiffs' claim for recruitment agency fees, as long as it is clear that the defendant's receipt of services from K is a legal ground, this part of the plaintiffs' claim cannot be accepted without further examining the remainder.

C. Judgment on the second preliminary claim

1) Determination on this safety defense

A) Whether it constitutes a means of real-time attack and defense

Even if the method of attack and defense not timely submitted, it cannot be deemed that the conclusion of a lawsuit is delayed due to such an act of attack and defense, in a case where the content of the method of attack and defense is included in the scope of litigation materials which had already been examined, or where the legal assertion does not require any separate examination of evidence (see, e.g., Supreme Court Decisions 92Da28921, Oct. 27, 1992; 2003Du968, Apr. 25, 2003).

In the proceedings of the first instance trial, it is clear in the record that the plaintiff did not assert the vicarious exercise of the recruitment agency's claim at the date of the first instance trial of this court, and only at the date of the first instance trial of this court, the argument related to the submission of the statement of grounds for appeal containing the argument that the subrogation agency's claim is claimed. However, this is not necessary to conduct separate examination of evidence since sufficient examination of evidence has already been made to make a judgment as a legal basis, and even if such assertion has not been submitted in the timely

Therefore, the defendant's argument that it should be dismissed as a means of attack on the actual time limit is rejected.

B) Whether a final and conclusive judgment conflicts with res judicata of the final and conclusive judgment

The lawsuit filed against the defendant by Bolivi Capital (Seoul Central District Court 2010Gahap 105339) is a lawsuit seeking payment of the acquisition amount on the ground that M's claim for recruitment agency fee against the defendant is taken over by Bolivi Capital. On the other hand, the second preliminary claim of this case is a lawsuit claiming the plaintiffs to act in subrogation as the creditor of K. Thus, each party and the subject matter of lawsuit cannot be said to be identical ( even if the recruitment agency fee belongs to the claim indivisiblely to K and M, the subject matter of lawsuit is identical solely for that reason.

No body shall be deemed the same.

Therefore, since res judicata of the final and conclusive judgment in the previous suit cannot be deemed to affect the second preliminary claim in this case, this part of the defendant's assertion cannot be accepted.

2) Determination on the merits

A) As seen in the judgment on the primary claim that K has the right to claim the Defendant for the recruitment agency fee as provided in the instant agency contract.

Meanwhile, as examined in the judgment on the primary claim, the instant assignment order is null and void. In the event that an assignment order is null and void, each claim against K, which is the execution bond of the instant assignment order, is not extinguished, since the execution bond of the instant assignment order, is not transferred to the entire creditor or its execution bond cannot be extinguished due to the repayment of the execution bond. Therefore, it shall be deemed that K still exists without extinguishing the claim against K. In addition, the fact that K is insolvent is not only clearly disputed by the Defendant, but also recognized based on the overall purport of the statements and arguments set forth in No. 67, No. 68-1, and No. 2.

Therefore, barring any special circumstance, the Plaintiffs may claim for the performance of the above recruitment agency fee owed by K in subrogation of K in order to transfer to K each of the above claims of the Plaintiffs against the Defendant.

B) We first examine the Defendant’s assertion on the statute of limitations defense.

(1) At the time of the instant agency contract, K and M are paid the amount equivalent to the ratio of the number of union members actually recruited among KRW 900 million based on the number of union members of 386 households to the number of union members. However, at the time of approving the authorization to establish an association, or at the time of approving the authorization to revise the association. The Defendant agreed to the head of Dongjak-gu on January 25, 2008 that the number of union members shall be 234.

In light of the above facts, the association establishment authorization was granted on June 16, 2008; thereafter, the number of association members was changed by 250 persons on June 16, 2008; and thereafter, the fact that the number of association members was reduced without additional recruitment is as stated in the above basic facts. Therefore, it is reasonable to view that the period of repayment of the above recruitment agency bond is June 16, 2008, when the association establishment authorization was granted based on 250 persons of association members.

(2) Meanwhile, since the instant agency contract constitutes an act of commercial activity against K and M, it constitutes a claim for K’s recruitment agency fee under the said contract constitutes a commercial claim subject to the period of extinctive prescription of five years under Article 64 of the Commercial Act. In other words, the issue arises as to whether the instant agency contract was null and void since it was not approved by the Defendant’s general meeting (Seoul Central District Court 2010Gahap10539, Seoul Central District Court 2010) in a lawsuit against the Defendant by transfer of the instant recruitment agency fee (Seoul Central District Court 2010Gahap10539), it cannot be deemed that K’s claim for the above recruitment agency fee is excluded from the application of Article 64 of the Commercial Act on the ground that K did not claim against the Defendant for the recruitment agency fee.

(3) However, as from June 16, 2008, the Plaintiffs added this part of the conjunctive claim seeking the performance of the above recruitment agency fee claim on the basis of the creditor’s subrogation right only after the lapse of five years on June 201, 2017, which was submitted to the court on June 20, 2017, from June 16, 2008 (the same as from October 23, 2009, when K requested the Defendant to pay recruitment agency fee). Thus, the above claim should be deemed to have been extinguished due to the lapse of five years after the lapse of the commercial statute of limitations

(4) Therefore, the defendant's defense of extinctive prescription is justified.

3) Sub-decisions

In conclusion, the second preliminary claim by the plaintiffs is to seek the performance of the claim extinguished by prescription, and it cannot be accepted (the defendant's defense of extinctive prescription is accepted and the second preliminary claim by the plaintiffs.

As long as all of the defendant's remaining defenses are dismissed, it shall not be judged separately).

3. Conclusion

Therefore, the main claim of the plaintiffs and the main claim of the first and second preliminary claims of the plaintiffs should be dismissed in all because they are without merit. Since the first and second preliminary claims of the plaintiffs are justified in this conclusion, the appeal of the plaintiffs and the first and second preliminary claims of this court are dismissed in all as they are without merit. It is so decided as per Disposition by the assent of all.

Judges in order of the presiding judge

Judges Han Young-young

Judges fixed-time;