The claim for restitution of unjust enrichment of this case terminated after the lapse of the statute of limitations prior to the filing of the lawsuit.

The claim for restitution of unjust enrichment of this case is necessary to resolve the legal relationship between the Defendants as shareholders and multiple creditors of the company and the company to the same extent as that of commercial transaction relationship, and the extinctive prescription is five years

Article 404 of the Civil Code, Right of Subrogation

Return of Unjust Enrichment

Korea

○ ○

2019.04.18

1. Of the instant lawsuit, the part of the Plaintiff’s claim for KRW 000,000,000 and damages for delay as to Defendant ○○ Enterprise Co., Ltd. shall be dismissed.

2. The plaintiff's remaining main claims against the defendant ○ Enterprise Co., Ltd., and the defendant ○ Enterprise Co., Ltd.

The primary claim, the conjunctive claim against the Defendants are dismissed, respectively.

3. The costs of the lawsuit shall be borne by the Plaintiff, including the costs incurred by the participation.

Cheong-gu Office

In the first place, Defendant ○ Enterprise Co., Ltd. (hereinafter referred to as “Defendant ○ Enterprise”) is around the Plaintiff.

0,00,000,000 won, and △△△ Co., Ltd. (hereinafter referred to as “Defendant △△”) jointly and severally with Defendant ○○ Company, shall pay 5% per annum from the day following the delivery of a copy of the complaint of this case to the day of the pronouncement of this judgment, and 15% per annum from the following day to the day of full payment.

Preliminaryly, the Intervenor’s Intervenor’s Intervenor Co., Ltd. (hereinafter “ Intervenor”) pays 15% interest per annum from the day following the delivery of a copy of the instant complaint to the day of complete payment with respect to each of the above money, Defendant ○○ Company’s KRW 0,000,000,000, Defendant ○○ Company’s KRW 0,000,000, and each of the above money.

1. Basic facts

A. Status of the parties

The plaintiff is a creditor who has a tax claim against the intervenor for the purpose of real estate development and enforcement business, etc., and the defendants are a creditor of the intervenor, who received interim dividends from the intervenor.

B. Tax claims against the plaintiff's intervenor

The plaintiff decided and notified to the intervenor one comprehensive real estate tax case, two corporate tax cases, one interest income tax case, and one securities transaction tax case respectively as shown below. However, the plaintiff failed to pay 0,000,000 won in total as of March 6, 000 due to only a part of the intervenor's payment or unpaid (hereinafter "tax claim Nos. 1 through 5 below" or "the tax claim No. 5 of this case" is "the tax claim No. 1 or 5 of this case" and "each of the above tax claims" is referred to as "the tax claims of this case").

(c) Amendment to the articles of incorporation and interim dividend of the intervenor;

1) On November 12, 000, the intervenor held a temporary general meeting of shareholders on November 12, 100 and made a decision to amend the Intervenor’s articles of incorporation by adding the provision that interim dividends may be paid to shareholders as of November 10, 200 pursuant to Article 462-3 of the Commercial Act, and interim dividends shall be paid in cash to the Intervenor’s articles of incorporation.

2) On December 20, 2010, the intervenor held a temporary general meeting of shareholders and decided to grant interim dividends to shareholders. The total interim dividends amounting to KRW 00,000,000 per share of ordinary share (00,000). Accordingly, interim dividends amounting to KRW 00,000 per share of the Intervenor’s shares (00 per share of the Intervenor’s shares) around that time. At that time, the interim dividends amount to KRW 00,000,000, and the Intervenor’s shares amount to KRW 00,000 (share ratio of 00%) were paid to Defendant ○ enterprise (hereinafter “instant interim dividends”).

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2, 4, 5, and 6 (including numbers, if any; hereinafter the same shall apply), the purport of the whole pleadings

2. Judgment as to the main claim

A. The parties' assertion

1) Plaintiff

The interim dividend of this case was carried out in the net asset value on the balance sheet for the immediately preceding settlement term after deducting the amount under each subparagraph of Article 462-3(2) of the former Commercial Act (amended by Act No. 10600, Apr. 14, 201; hereinafter “former Commercial Act”) from the amount under each subparagraph of Article 462-3(2) of the former Commercial Act (amended by Act No. 10600, Apr. 14, 201; hereinafter “former Commercial Act”). Although the net asset value on the balance sheet for the relevant settlement term is unlikely to reach the total amount under each subparagraph of Article 462(1) of the former Commercial Act, the net asset value on the balance sheet for the relevant settlement term did not reach the total amount under each subparagraph of Article 462(1) of the former Commercial Act. Accordingly, the interim dividend of this case is unlawful

Therefore, Defendant ○○ Company on behalf of the Intervenor, who is insolvent, is obligated to return to the Plaintiff the dividend amount of KRW 0,000,000,000,000, which is the aggregate of the claims of each of the instant tax claims against the Intervenor among the dividend amount of KRW 0,000,000,000, and Defendant ○○ Company, jointly and severally with Defendant ○○ Company, the dividend amount of KRW 0,00,00,000,000, and damages for delay on each of the said payments, which Defendant ○ Company received through the instant interim dividends, as unjust enrichment.

2) The Defendants and the Intervenor

A) Each of the instant taxation claims has expired five years of extinctive prescription.

B) The interim dividend of this case did not violate Article 462-3(2) and (3) of the former Commercial Act.

C) The Intervenor’s claim for return of unjust enrichment from the interim dividend of this case against the Defendants was extinguished by the lapse of the five-year commercial statute of limitations.

B. Determination

1) The establishment and scope of the preserved claim

According to the above facts, as of March 6, 2018, the intervenor could be found to have failed to pay comprehensive real estate holding tax amounting to KRW 0,000,000,000 in total amount of each of the respective taxation claims of this case as of March 6, 2018. Thus, barring any special circumstance, the plaintiff has a claim against the intervenor for the above KRW 0,000,000,000 and damages for delay.

As to this, the Defendants and the Intervenor asserted that the statute of limitations has expired after the lapse of five years, and as to this, the Plaintiff re-claimed that the statute of limitations has been interrupted due to the seizure of the instant claim Nos. 1 and 2, which is examined below (the Plaintiff asserts that the Defendants, the garnishee of the obligee subrogation lawsuit, cannot invoke the obligor’s defense of the statute of limitations against the obligee. However, as long as the Intervenor, who is the obligor of the obligee subrogation lawsuit, participated in the instant lawsuit as the obligor of the obligee subrogation lawsuit, and raises an objection against the statute of limitations, the Defendants may invoke the obligee’s defense of the statute of limitations (see, e.g., Supreme Court Decision 2007Da6471, Jan. 31, 200

1 Deposit Claim (○ bank ○○ branch) on April 15, 000, September 27, 000

2. Deposit claims (including a savings bank, a mutual savings bank, etc.) on April 14, 000. 27 September 27, 000

3. Deposit claims (including a savings bank, a mutual savings bank, etc.) on April 14, 000. 27 September 27, 000

4 Deposit claims [the savings bank ○○ bank ○○ branch office] April 14, 000, September 27, 2000

5 Loans Bonds [the Bank of Korea ○○○○○○] July 9, 000

(See) The plaintiff's above assertion is without merit.

A) Determination as to the defendants and intervenors' defenses of extinctive prescription

(1) Whether the extinctive prescription of the first tax claim of this case expired

The time limit for payment of the first tax claim of this case is December 15, 2010, and pursuant to Article 27(1) of the former Framework Act on National Taxes (amended by Act No. 11604, Jan. 1, 2013; hereinafter the "former Framework Act on National Taxes"). The time limit for payment of the first tax claim of this case is five years, and it is apparent that the lawsuit of this case was filed on March 6, 2018 after the lapse of five years from December 15, 2010, which is the above time limit for payment. However, considering the overall purport of arguments in evidence Nos. 13 and 15, it is clear that the time limit has been interrupted since the plaintiff seized the intervenor's deposit claim of this case as indicated in the table below, and it is not clear that the time limit for payment of the first tax claim of this case was suspended at that time as of the date of revocation of the seizure as of the date of the first tax claim of this case.

Therefore, the plaintiff's second ground for the interruption of the extinctive prescription that points out this ground is justified [this ground is that the defendant and intervenor asserted that the interruption of the extinctive prescription does not take effect because there is no deposit claim which is the claim subject to seizure at the time of the seizure of each of the above deposit claims. However, the creditor's first ground for cancellation of the extinctive prescription is stated in the list No. 1 or No. 15 (Evidence No. 15) of the debtor, the date of the request for cancellation of the seizure related to the claim subject to seizure as stated below No. 1 or No. 4 is stated on April 27, 000, and although the date of cancellation is stated on April 14, 000 or April 15, 00, it is reasonable to view that the date of request for cancellation

Date of release of seizure subject to seizure

1. Deposit claim [the savings bank ○○ bank ○○ branch ○○ branch ] August 31, 000, October 12, 000

2. Deposit claims [the Bank of Korea, ○○ Savings Bank] on August 31, 000, October 12, 000

3. Deposit claims (○ bank’s ○○ branch office) on August 31, 000, October 12, 000

on February 20, 2000, a deposit claim (including a savings bank, a mutual savings bank, a mutual savings bank, etc.) on August 31, 000

5 Deposit claims [the savings bank in charge of the settlement of accounts] on August 31, 000, and on October 12, 000

6 Deposit claims (○○○○ City Branch) on August 31, 000, October 12, 000

7 Deposit claims (○○○○ Dong Branch) on August 31, 000, October 12, 000

8 Deposit claims [the savings bank ○○ bank ○○ branch office] August 31, 000, October 12, 000

9 Deposit claims (○) on August 31, 000, October 12, 000

In cases where there is no existing claim against a garnishee at the time of seizure due to the existence of the claim subject to seizure already extinguished, barring special circumstances, extinctive prescription of the execution claim shall be interrupted (see Supreme Court Decision 2013Da4730, Jan. 29, 2014). Therefore, the Defendants and intervenors’ above assertion is without merit). Ultimately, this part of the statute of limitations defense by the Defendants and intervenors is without merit.

(2) Whether the extinctive prescription of the second tax claim of this case expired

The deadline for payment of the second tax claim of this case is July 31, 00, and the period of the extinctive prescription is five years pursuant to Article 27(1) of the former Framework Act on National Taxes, and it is apparent in the record that the lawsuit of this case was filed on March 6, 000 after the lapse of five years from July 31, 000, the above deadline for payment. However, in full view of each of the statements in evidence Nos. 10, 15, and 16, the plaintiff's attachment of the intervenor's deposit claim as indicated in the table below as the second tax creditor of this case is recognized, and thus, the extinctive prescription was suspended at that time, and it is clear that the period has not elapsed since October 12, 2015, which was the date of cancellation of the attachment, as of the date of the lawsuit of this case.

10. Deposit claims (including a mutual savings bank in charge of the settlement of accounts) on August 31, 000, October 12, 000

11. Loan bonds [○○○○○] August 31, 000

Therefore, the plaintiff's second defense for the interruption of extinctive prescription pointing this out is well-grounded (the defendants and intervenors against them). ① Since there is no deposit claim which is a seized claim at the time of seizure of each of the above deposit claims, the interruption of extinctive prescription does not become effective

Even if there is no ground for interruption of extinctive prescription at the time of seizure. However, barring any special circumstance, the extinctive prescription defense of the Defendants and intervenors is without merit, as seen earlier, even in cases where the obligee had already extinguished the seized claim at the time of seizure of the obligor’s claim against the third obligor, etc., barring any special circumstance, the period of extinctive prescription of the enforcement claim shall be interrupted by executing the seizure, and there is no evidence to deem that the execution procedure had been terminated before the cancellation of seizure of each of the above deposit claims. Therefore, the Defendants and intervenors’ assertion is without merit.

(3) Whether the extinctive prescription of tax claim Nos. 3, 4, and 5 of the instant case expired

The time limit for payment of the instant tax claims is October 31, 00. The said time limit for payment of the instant tax claims is as seen earlier, and the fact that the said time limit for payment of the instant tax claims is January 31, 000 is five years pursuant to Article 27(1) of the former Framework Act on National Taxes, and it is apparent in the record that the instant lawsuit was filed on March 6, 000 after the lapse of five years from October 31, 000 or January 31, 000, which is the said time limit for payment. Therefore, the Defendants and the Intervenor’s defense of the time limit for payment of the instant tax claims is reasonable.

B) Sub-decisions

(1) As seen earlier, the Plaintiff has a tax claim equivalent to KRW 0,00,000 against the Intervenor, and the said claim is a preserved claim against the obligee’s subrogation lawsuit filed by the Plaintiff on behalf of the Intervenor.

(2) Meanwhile, in cases where a creditor’s right to a debtor to be preserved by subrogation is not acknowledged in a creditor’s subrogation lawsuit, the creditor himself/herself becomes the plaintiff and is no longer entitled to exercise the debtor’s right to a third debtor’s right to the third debtor, and such subrogation lawsuit is unlawful and dismissed (see, e.g., Supreme Court Decision 91Da1008, Jun. 11, 1991).

As seen earlier, the portion of the claim for the total amount of KRW 000,00,000 and damages for delay, which exceeds the scope of the preserved claim of the creditor subrogation lawsuit of this case, and the claim for the total amount of KRW 3,4, and 5,000,00, which are the amount exceeding the scope of the preserved claim of this case, cannot be deemed to be a party standing to the plaintiff.

2) Intervenor’s insolvency and non-exercise of rights

In full view of the purport of the evidence Nos. 2 and 3 as a whole, the intervenor closed his business on August 31, 000 on the ground of business depression, and the intervenor may recognize the facts that there are no particular assets held by the intervenor. According to the above acknowledged facts, it is confirmed that the intervenor is insolvent at present, and the intervenor does not exercise the right to claim the return of unjust enrichment due to the interim dividend of this case against the Defendants until the closing date of the argument in this case.

3) Claim by subrogation

A) Whether the interim dividend of this case violates Article 462-3(2) and (3) of the former Commercial Act

(1) Relevant provisions

The provisions of the former Commercial Act relating to the interim dividend of this case are as follows.

§ 462. Distribution of profits under the former Commercial Act

(1) A company may pay dividends within the limit of the amount of net assets stated on the balance sheet after deducting the following:

1. Amount of the capital;

2. The aggregate of capital reserve and earned surplus reserve accumulated up until the period for the settlement of accounts;

3. The amount of earned surplus reserve to be accumulated in the period for the settlement of accounts;

Article 462-3 of the former Commercial Act (Interim Dividend)

(1) A company which has a settling term one time a year may determine in the articles of incorporation that the company may pay a dividend (hereinafter referred to as "interim dividend") in cash to the day's shareholder on a specified day set by a resolution of the board of directors only once during the business year.

(2) The interim dividend shall be limited to the amount of net assets stated in the balance sheet for the immediately preceding settlement term minus the following amounts:

1. The amount of capital in the immediately preceding settling term;

2. The aggregate of capital reserve and earned surplus reserve accumulated up until the immediately preceding settling term;

3. The amount determined to be distributed or paid in profits at the ordinary general meeting in the immediately preceding settling term;

4. Earned surplus reserve to be accumulated in the term for the settlement concerned with interim dividends.

(3) Where net assets value on the balance sheet for the relevant period for settlement of accounts is apprehended to fall short of the total sum of the amounts under subparagraphs of Article 462 (1), a company shall not interim dividends.

(hereinafter referred to as "serious")

(2) Whether the interim dividend of this case violates Article 462-3(2) of the former Commercial Act

In full view of the purport of the argument in Gap evidence 7-1, the intervenor's net assets value as of December 31, 000 as of December 31, 000 is -0,000,000 won (i.e., total assets amount of KRW 00,00,000,000 - total assets amount of KRW 00,000,000,000), the amount of capital is 00,000,000, and the amount of capital is 00,000,000, as stipulated in Article 462-3 (2) 2 of the former Commercial Act, or 'total amount of capital reserve and earned surplus reserve accumulated until the previous fiscal term,' as defined in subparagraph 3 of Article 462-3 (2) of the former Commercial Act, or 'amount to pay or pay as profit

Therefore, the Intervenor’s distributable profit calculated pursuant to Article 462-3(2) of the former Commercial Act at the time of the interim dividend at the time of the instant interim dividend (= -00,000,000 won in capital - 00,000,000 won in the amount of capital - earned surplus reserve to be accumulated in the relevant settlement term according to the interim dividend (= 000,000,000,000 in the instant interim dividend x 1/102), and thus, the instant interim dividend at the time of the instant interim dividend violates Article 462-3(2) of the former Commercial Act as it did not have the distributable profit.

(3) Whether the interim dividend of this case violates Article 462-3(3) of the former Commercial Act

In full view of the purport of the argument in Gap evidence 7-2, the plaintiff's net assets value as of December 31, 000 is KRW 00,000,000 (=total assets total amount of KRW 0,000,000,000 - total assets total amount of KRW 0,000,000), the amount of capital is KRW 000,000,000, and there is no "total amount of capital reserve and earned surplus reserve" under Article 462 (1) 2 of the former Commercial Act.

In addition to the fact that the intervenor's distributable profit calculated pursuant to Article 462-3 (2) of the former Commercial Act at the time of the interim dividend in this case was KRW -0,00,000,000, the interim dividend in this case was implemented despite the risk that the net asset value on the balance sheet in the relevant settlement term for settlement of accounts falls short of the total sum of the amounts under the subparagraphs of Article 462 (1) of the former Commercial Act, and thus, violated Article 462-3

(4) The theory of lawsuit

Since the interim dividend of this case violates Article 462-3 (2) and (3) of the former Commercial Act, the company is specially obligated to accumulate as the earned surplus reserve the amount of at least 1/10 of the cash dividend at the end of each period for the settlement of accounts until the amount reaches 1/2 of the capital (see Article 458 of the former Commercial Act). Thus, the intervenor shall accumulate at least 1/10 of the interim dividend of this case as the earned surplus reserve.

Unless there are special circumstances, the Defendants are obliged to return the amount received through the interim dividend of this case to the Intervenor in unjust enrichment.

B) Whether the extinctive prescription of the claim for restitution of unjust enrichment arising from the interim dividend in the instant case expires

The Defendants and the Intervenor asserted that the statute of limitations expired due to the lapse of five-year commercial statute of limitations due to the claim for return of unjust enrichment arising from the interim dividend of this case. As such, first, we examine whether the above claim for return of unjust enrichment arising from commercial activity applies to the claim arising from the commercial activity

A claim arising from an act that constitutes a commercial activity, as well as a claim arising from an act that acts that acts as a commercial activity for both parties, constitutes a commercial claim to which the period of extinctive prescription of five years under Article 64 of the Commercial Act applies, and as well as a claim arising from a commercial activity is also subject to application of Article 64 of the Commercial Act or analogical application thereof (see, e.g., Supreme Court Decision 2013Da214871, Jul. 24, 2014)

Article 462-3(3) of the former Commercial Act provides that the obligor’s right to claim restitution of unjust enrichment against the Defendants by the Intervenor is arising from the interim dividend in violation of Article 462-3(2) and (3) of the former Commercial Act, and the legal relationship between the Defendants, the Defendants, and multiple creditors, who are shareholders, in light of the background and cause of the occurrence of the claim, the status of the parties, and the relationship between the parties. Article 464-2(2) of the Commercial Act provides that the obligor’s right to claim restitution of unjust enrichment against the Defendants shall expire when it is not exercised for five years against the company (Article 464-2(2) of the Commercial Act as well as the current Commercial Act as at the time of the interim dividend). In full view of the above, it is reasonable to deem that the statute of limitations for the above right to claim restitution of unjust enrichment shall apply for five years.

However, as seen earlier, the Defendants received dividends through the instant interim dividend around December 20, 000, and it is apparent in the record that the instant lawsuit was filed on March 6, 000, which was five years after the date of the said dividend payment, from December 20, 2000. Thus, the right to claim the return of unjust enrichment claimed by the Plaintiff was expired after the lapse of the extinctive prescription period prior to the instant lawsuit. Accordingly, the Defendants and the Intervenor’s defense of the extinctive prescription is with merit, and thus, the Plaintiff’s primary claim cannot be accepted.

3. Judgment on the conjunctive claim

A. The parties' assertion

1) Plaintiff

The Plaintiff, as a creditor against the Intervenor, filed a claim against the Defendants pursuant to Articles 462-3(6) and 462(3) of the former Commercial Act to return dividends received from the instant interim dividend in violation of Article 462-3(3) of the former Commercial Act to the Intervenor. As such, the Intervenor is obligated to refund to the Intervenor the dividends received from the instant interim dividend, Defendant ○○ Company’s dividends 6,45,959,451 won, Defendant ○ Company’s dividends received from the instant interim dividend, and the delayed payment of the said dividends 0,000,000,000 won and damages for delay.

2) The Defendants and the Intervenor

A) The instant interim dividend does not violate Article 462-3(3) of the former Commercial Act.

B) The Plaintiff’s claim for the return of illegal dividends under Articles 462-3(6) and 462(3) of the former Commercial Act against the Defendants was extinguished by the statute of limitations for a five-year commercial statute of limitations.

B. Determination

1) Determination as to the cause of claim

As seen earlier, the interim dividend of this case is in violation of Article 462-3(3) of the former Commercial Act.

As a result, the plaintiff is a creditor against the intervenor, and pursuant to Articles 462-3(6) and 462(3) of the former Commercial Act, the plaintiff can request the defendants to return dividends received from the interim dividend of this case to the intervenor.

2) Determination as to the defendants and intervenors' defenses of extinctive prescription

The Defendants and the Intervenor asserted that the statute of limitations has expired due to the lapse of five-year commercial statute of limitations. As such, the Defendants and the Intervenor asserted that the right to claim the return of the above illegal dividend applies to the claim arising from commercial activities (the right to claim the return of the claim against the company directly by the creditor), as seen earlier, and it is apparent in the record that the instant lawsuit was filed on March 6, 2018, which was five years after the date of the payment of dividends, and thus, the said right to claim the return of the illegal dividend claimed by the Plaintiff had expired after the lapse of five years from the time of the filing of the instant lawsuit. Accordingly, the Defendants and the Intervenor’s aforementioned defense of the statute of limitations has merit, and thus, the Plaintiff’s conjunctive claim cannot be accepted.

4. Conclusion

Therefore, among the lawsuit of this case, the part of the plaintiff's claim for 00 million won and damages for delay against the defendant ○○ Enterprise Co., Ltd. is unlawful and dismissed. The plaintiff's remaining main claim against the defendant ○ Enterprise Co., Ltd., the main claim against the defendant ○ Enterprise Co., Ltd., the main claim against △△, and the conjunctive claim against the defendants are dismissed. It is so decided as per Disposition.