[1] Whether a so-called zero-party company whose equity shares are zero (0) as the specialized construction mutual aid association under the former Specialized Construction Mutual Aid Association Act acquires all equity shares on the grounds of the exercise of security rights to its members, loses the status as a member of the above association (affirmative)

[2] Where a mutual aid association by type of business under the former Specialized Construction Mutual Aid Association is separated and established from a specialized construction mutual aid association, and the actual evaluation of all assets of the specialized construction mutual aid association is conducted to calculate the amount of investment to be transferred to the specialized construction mutual aid association by type of business, the method of appropriation for allowances for severance benefits (=the total estimated amount

[3] Whether a request for return of the payment due to a declaration of provisional execution at the court of final appeal is allowed (negative with qualification)

[1] The purport of Article 12 (2) 3 of the Articles of the Specialized Construction Mutual Aid Association (repealed by Article 2 of the Addenda to the Framework Act on the Construction Industry, Act No. 5230, Dec. 30, 1996) stipulating that "when the Specialized Construction Mutual Aid Association and the Specialized Construction Mutual Aid Association for each Industry are operated on the basis of the members' contributions, and all of the rights and obligations as a member of the Mutual Aid Association are generated and exercised on the basis of investments," regardless of whether the cause exists, it would result in a failure to perform all the basic obligations of the Mutual Aid Association upon the transfer of all the investment certificates, regardless of which the status of the member is given, to a member who is not able to have the rights and obligations of the Mutual Aid Association recognized on the basis of investment shares, and therefore, it is reasonable for Special Construction Mutual Aid Association to lose the status of a Special Aid Association as a member by acquiring all investment shares on the ground of the exercise of a security right.

[2] Under the former Specialized Construction Mutual Aid Association Act (repealed by Article 2 of the Addenda of the Framework Act on the Construction Industry, Act No. 5230, Dec. 30, 1996), a mutual aid association by industry can seek a cooperative member's share transfer against a specialized construction mutual aid association directly. A specialized constructor who is qualified as a cooperative member of a mutual aid association by industry may immediately withdraw from a specialized construction mutual aid association and join the mutual aid association by industry under the same Act. In light of each of the provisions of the same Act on the transfer of contributions at the time of establishment of a mutual aid association by industry and succession of membership status, the establishment of a mutual aid association by industry has the nature of compulsory division from a specialized construction mutual aid association under the Act, such as dissolution of the association or withdrawal from part of the association, and the transfer of contributions should be based on the actual assessment of the assets before the special construction mutual aid association, but it should be appropriated for the calculation of profits and losses for a reasonable period of time, and thus, it should not be applied to the amount of retirement benefits paid by a corporation under tax law.

[3] An application for return of a payment due to a declaration of provisional execution under Article 201 (2) of the Civil Procedure Act is a system that allows the obligor, who has been executed by the provisional execution, to file an objection to the merits of the case, and to save the costs, time, etc. of filing a counterclaim or a subsequent suit by opening a simplified way to undergo the examination of the application using the procedures for the examination of the merits. In principle, the obligor, who has been executed, shall file an objection to the merits before the closing of argument in the appellate court having deliberated on the merits, and in order to make a statement of the facts and to determine whether it is reasonable, the oral argument is necessary. The final appellate court, which is a legal trial, has been paid by the execution, cannot deliberate and determine the facts, such as which scope of damage was caused by the execution. Thus, except where there is no dispute between the parties as to the facts alleged as the reason for the application, and it is not necessary to examine the facts, the application for return of the payment due to the declaration of provisional execution cannot be allowed in

[1] Article 2 subparag. 1, Articles 7(1)5, 11, 12(1)2, and 13 of the former Specialized Construction Mutual Aid Association Act (repealed by Article 2 of the Addenda to the Framework Act on the Construction Industry, Act No. 5230, Dec. 30, 1996) / [2] Article 8-2 of the former Specialized Construction Mutual Aid Association Act (repealed by Article 2 of the Addenda to the Framework Act on the Construction Industry, Act No. 5230, Dec. 30, 1996) / [3] Article 201(2) of the Civil Procedure Act

[1] Supreme Court Decision 98Da59248 delivered on February 25, 200 / [3] Supreme Court Decision 80Da2055 delivered on November 11, 1980 (Gong1981, 13368) Supreme Court Decision 95Da38127 delivered on December 12, 1995 (Gong1996Sang, 382), Supreme Court Decision 97Da6810 delivered on November 28, 1997 (Gong198Sang, 43) (Gong199Da3617 delivered on November 26, 199)

Korea Equipment Construction Financial Cooperative (Attorney Kim Jong-soo et al., Counsel for the plaintiff-appellant)

Specialized Construction Financial Cooperative (Law Firm Dongsung, Attorneys Kim Sun-ray et al., Counsel for the defendant-appellant)

Seoul High Court Decision 97Na58042 delivered on June 26, 1998

Of the judgment of the court below, the part concerning the confirmed claim amount, the part concerning the transfer of the national subsidy, and the part concerning the attempted interest of the business entity’s loan to the Young Unit and the revocation business is reversed, and that part of the case is remanded to the Seoul High Court. The remaining appeal by the plaintiff is dismissed. The defendant’s application for the return of the payment due

The grounds of appeal (to the extent of supplement in case of supplemental appellate briefs not timely filed) are examined as follows.

1. Plaintiff’s ground of appeal

A. As to the finalized debt and the accrued interest on loans relating to the status of a member of an enterprise with the Young Unit

(1) Fact-finding and judgment of the court below

(A) According to the reasoning of the judgment below, the court below rejected the Defendant Mutual Aid Association based on the following reasoning: The Defendant Mutual Aid Association was established on April 25, 1988 for the purpose of promoting autonomous economic activities and providing various guarantees and loans necessary for carrying out construction business through mutual cooperative organizations among specialized constructors pursuant to the former Specialized Construction Mutual Aid Association Act, enacted by Act No. 3935 on October 24, 1987 (amended by Act No. 2 of the Addenda of the Framework Act on the Construction Industry, enacted on December 30, 1996; hereinafter referred to as the “Act”), which was established on July 1, 1997; the Plaintiff Mutual Aid Association was established on July 1, 196 with a license for the installation business of the Defendant Mutual Aid Association and established on the same purpose and commenced its business from July 1, 1996, which became a member of the Plaintiff Mutual Aid Association's investment shares after deducting the amount of the Plaintiff Mutual Aid Association's share transfer from the Plaintiff Mutual Aid Association's total estimated amount of KRW 25195.

(B) In other words, the issue of where the defendant union can transfer the credit amount, etc. to the plaintiff union after deducting the credit amount from the investment amount is determined depending on where the defendant union is the defendant union member. Thus, the defendant union does not require the defendant union member to maintain the status of union member even in the statutes and the articles of association, and the defendant union's articles of association do not include cases where the union member has acquired all investment shares by exercising security rights. The defendant union member is merely a company short of the number of investment units, and it is interpreted that it does not lose the status of union member without expulsion. In light of the purport of the law, it is reasonable to deem that the person who becomes a union member should be deemed that the defendant union member still holds the status of the defendant union member, except where he/she voluntarily transfers his/her share from the union and withdraws from the union or he/she does not meet the requirements for union member in accordance with Article 13 of the Act. Therefore, it is reasonable to deduct the defendant union member from the amount of credit transfer from the amount of the credit amount, such as the finalized claim.

(2) The judgment of this Court

Article 2 (1) of the Act provides that "members" refers to constructors who have obtained a license for specialized construction business under the Construction Business Act and who have invested in specialized construction mutual aid associations or mutual aid associations by business type. The Act provides that where a mutual aid association by business type is established in connection with the transfer of investments following the establishment of a mutual aid association by business type and succession of the status and rights of members, the investments of those who are to become members of a mutual aid association by business type who are paid to specialized construction mutual aid associations shall be considered as the investments of the mutual aid association by business type (Article 8-2 (1) of the Act). Of the members of a specialized construction mutual aid association, those who are qualified as members of a mutual aid association by business type among the members of a specialized construction mutual aid association shall be considered as the members of the mutual aid association by business type from the date of commencing the business of the mutual aid association by business type (Article 8 (5) of the Act)

In light of the legal provisions that the specialized construction mutual aid association shall be deemed to have transferred its membership and its investment from the specialized construction mutual aid association to the specialized construction mutual aid association by type of business on the basis of the starting date of its business, and on this basis, the specialized construction mutual aid association shall succeed to the rights and obligations of the association members by type of business in relation with the pertinent union members. In light of the legal provisions that the Defendant mutual aid association shall succeed to the mutual aid association by type of business, the determination by the lower court is justifiable that whether the Defendant mutual aid association may transfer its membership after deducting confirmation claims

However, it is difficult to accept the judgment of the court below that the status of the defendant as a member is still maintained even in the field of business.

Article 11 of the Act provides that a current or former partner or a person who has obtained a license for a specialized construction business under the Construction Business Act may transfer his/her share to another partner under the conditions as prescribed by the Presidential Decree or a person who intends to become a partner (paragraph (1)); Article 13 of the Act provides that ① a license for a specialized construction business is cancelled or invalidated; ② a license for a specialized construction business is declared incompetent or bankrupt; ③ a expulsion is made on the ground of ex officio withdrawal of partners; and Article 7(1)5 of the Act provides that matters concerning admission, withdrawal and expulsion of partners shall be stipulated as necessary entry in the articles of association; and accordingly, Article 12(1) of the Articles of the Act provides that a member may withdraw from a cooperative by transferring his/her share in whole; Article 12(2) provides that a member may transfer his/her share in whole; and Article 13 of the Act provides that a member shall be added as a ground for ex officio withdrawal from the status of a member.

However, when a member of the defendant association intends to use a business of the defendant association or become a joint and several surety for other members, such as purchase and intermediation of machinery and materials for guarantee, financing, construction, etc., the defendant association shall provide investment certificates to the association corresponding to the trading limit (Article 11(1) of the Regulations on Handling of Investment Certificates). The provision of security shall be based on the method of pledge of registered shares under the Commercial Act (Article 11(3) of the Act). The defendant association may acquire investment certificates by the method of pledge of the investment certificates provided as security (Articles 11(2) and 12 and 12(1)2 of the Act). The above provision on the acquisition of shares of the association provides that the partner's liability is limited to the amount of investment shares (Article 6(7) of the Act; Article 11 of the Articles of association); the partner may not exercise his/her voting rights within the limit of the amount of investment shares unless he/she has a separate voting right for each contribution unit (Article 17(2) and Article 18 through 16 of the Articles of association).

Nevertheless, the court below erred by misapprehending the legal principles as to the membership status of the Defendant Union, which affected the conclusion of the judgment. The ground of appeal pointing this out is with merit (However, if the amount of the confirmed claim against the Young-tier enterprise is assessed as a loss, the part should be reflected in the calculation of the investment share for the transfer of the investment).

B. As to the transfer of equity shares to the partners holding double licenses

It is reasonable to view that only the rights and obligations of a plaintiff union as a license holder shall be included in the rights and obligations of a member of the plaintiff union, which are succeeded to the plaintiff union pursuant to Article 8-2 (4) of the Act. The decision of the court below to the same effect is just, and there is no violation of law or violation of law.

The ground of appeal disputing this issue is rejected.

C. As to the joint and several liability obligations

Since a joint and several surety obligation is a kind and kind of obligation on the principal obligation, as long as the obligation to the non-party general affairs corporation, which is the principal obligor, is succeeded to the Plaintiff Union pursuant to the provisions of this Act, the obligation to the joint and several surety obligation shall not be deemed to be succeeded to the Plaintiff Union.

The judgment of the court below on this point is just, and there is no error of law by misunderstanding the legal principles on the non-performance of the guaranteed obligation.

We do not accept the argument in the grounds of appeal disputing this point.

D. Regarding the allowance for severance benefits

In light of each provision on the transfer of the investment amount at the time of the establishment of the Plaintiff association and the succession of the status of the union members, such as the fact that the Plaintiff association can seek the transfer of the shares of the union members directly from the Defendant association, and that the persons who are qualified as the members of the Plaintiff association as a specialized constructor are the Plaintiff association without going through the withdrawal from the Defendant association and the procedures for joining the Plaintiff association, and immediately become the Plaintiff association members under the law, the establishment of the Plaintiff association has the character of compulsory division from the Defendant association under the law, and the transfer of the investment amount should be based on the substantial assessment of the entire assets of the Defendant association,

In light of the above legal principles and records, the court below is justified to determine that retirement allowances are not subject to the application of 50% of retirement allowances according to the corporate tax laws and regulations that set forth the standards for tax assessment of the amount of retirement allowances, but it is reasonable to include and settle the total amount of retirement allowances estimation in accordance with the actual value of the property of the defendant union in order to calculate the amount of the investment to be transferred in accordance with the above corporate tax laws and regulations, and that it is not contrary to the continuity of the accounting standards. There is no error in the misapprehension of the nature of the establishment of the plaintiff association or the violation of the principle of continuity of corporate accounting standards.

We cannot accept the allegation in the grounds of appeal on this point.

E. As to the national subsidy

In order for a corporation to acquire business assets, the amount paid by the State under the Act on the Budgeting and Management of Subsidies may be appropriated for deductible expenses by appropriating it as temporary depreciation benefits under the tax law, which is merely the disposal of tax laws to reflect the original purpose of the subsidy, and as long as it actually brings about an increase in its assets, the national subsidy granted by the Defendant Cooperative, as an element of increasing the value of equity shares, shall also be reflected in the calculation and transfer of equity shares if it actually evaluates the entire assets of the Defendant Cooperative to calculate the amount of investment to be transferred to the Plaintiff Cooperative as in this case.

Nevertheless, the court below erred in the misapprehension of legal principles as to the calculation and transfer of the amount of subsidies and the calculation of the amount of subsidies when the plaintiff association is separated from the defendant association, and it is therefore justified in the ground of appeal pointing this out. The court below erred in the misapprehension of legal principles as to the nature of the national subsidy and the calculation and transfer of the amount of subsidies when the defendant association is separated from the defendant association, and the ground of appeal pointing this out is with merit.

2. As to the Defendant’s ground of appeal

If, as alleged by the defendant, the amount of final claim against the revocation company is inevitable to be identified as a loss as a result of the actual evaluation of the whole property of the defendant union, the transfer of the investment should be made on the basis of the actual evaluation of the whole property of the defendant union, apart from what the method of the transfer should be reflected in the calculation of the investment shares, at least the part should be reflected in the calculation of the investment shares. Therefore, the court below should have deliberated on whether the claim is assessed as

Nevertheless, the judgment of the court below which accepted the plaintiff's claim for the return of the amount of money by denying the deduction of the amount equivalent to the amount of investment shares out of the amount of the debt of the revocation company for the reason that the defendant's license holder is not a member of the defendant association as long as he is not a member of the defendant association. The judgment of the court below which affected the conclusion of the judgment by creating confusion with the succession of the status of the partner and succession of the rights arising therefrom. The allegation

3. As to the defendant's application for return of the payment upon the declaration of provisional execution

A request for the return of payment due to a declaration of provisional execution under Article 201 (2) of the Civil Procedure Act is a system that allows an obligor who has been executed by a provisional execution to file an objection to the merits, which has been executed by the obligor to save the costs, time, etc. of filing a counterclaim or a subsequent suit by having the obligor, using the procedures for deliberation on the merits. In principle, the obligor shall file an objection to the merits before the closing of argument in the appellate court which has deliberated on the merits, and in order to make a statement of the facts and to judge whether it is justifiable, the pleading is necessary. The court of final appeal which is a legal trial is required to hear and determine the facts, such as what extent the payment was made by the execution, and it is impossible to examine and determine the facts, and therefore, the request for the return of payment due to a declaration of provisional execution may not be allowed in the court of final appeal except where there is no dispute between the parties on the facts alleged as the grounds for the application, and it is not necessary to examine the facts (see, e.g., Supreme Court Decision 97Da6810, Nov.).

Therefore, the defendant's motion of this case cannot be accepted.

4. Therefore, of the judgment of the court below, the part concerning the final claim amount against the Young-unit and the revocation company, the part concerning the transfer of government subsidies, and the part concerning the attempted interest of loans of the Young-unit and the revocation company shall be reversed, and this part of the case shall be remanded to the court below for further proceedings consistent with this Opinion. The remaining grounds of appeal by the plaintiff shall be dismissed, and the application for return of payment due to the defendant's

Justices Lee In-hee (Presiding Justice)