Seoul High Court Decision 200Na11446 decided May 1, 200

Hanam Comprehensive Development Co., Ltd. (Attorneys Ha Man-man et al., Counsel for the plaintiff-appellant)

March 21, 2012

Seoul Southern District Court Decision 2010Gahap26715 Decided September 1, 2011

1. The part of the judgment of the court of first instance against the plaintiff corresponding to the money ordered to be paid below shall be revoked.

The defendant shall pay to the plaintiff 13,359,453 won and the amount calculated by applying 5% per annum from January 8, 201 to June 27, 2012, and 20% per annum from the next day to the day of full payment.

2. The plaintiff's remaining appeal is dismissed.

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

4. The portion paid with the amount under paragraph (1) may be provisionally executed.

The judgment of the first instance shall be revoked. The defendant shall pay to the plaintiff 676,153,973 won with 5% interest per annum from July 23, 2010 to the service date of a copy of the complaint of this case, and 20% interest per annum from the next day to the day of complete payment.

1. Quotation of judgment of the first instance;

The reasoning for this Court’s explanation concerning this case is that it is identical to the reasoning for the judgment of the court of first instance except for any addition or modification below. Thus, it is acceptable to accept this as it is in accordance with the main sentence of

2. Additional parts (Nos. 7 and 14 of the judgment of the first instance); and

(3) (A) The Plaintiff asserts that when the dividend reserve deposit was made on behalf of the provisional seizure creditor, the effect of the actual repayment has occurred when the provisional seizure creditor acquires enforcement title, such as a final and conclusive judgment, and therefore, the Plaintiff has no obligation to pay damages for delay of KRW 7 billion to the Defendant.

(B) In a case where a creditor’s claim to be distributed in the distribution procedure is a provisional seizure creditor, the executing court cannot execute the distribution because the existence and scope of the creditor’s claim for provisional seizure is not determined, and thus the said creditor’s claim is reserved to execute the distribution and deposited the dividends (Article 160(1)2 of the Civil Execution Act). (1) In light of the following circumstances, it is reasonable to view that in the case of the reserve for distribution, the time when the repayment takes effect shall be when the creditor of provisional seizure who has obtained final judgment, etc. has actually received the dividends from the executing court (see Supreme Court Decision 2002Da38361, 38378, Nov. 8, 2002), as seen earlier, the repayment takes effect within the extent of receiving the distribution. This is because it is difficult to view that the creditor, who has executive title, would have obtained the satisfaction of the claim by paying dividends to the creditor who has an execution title through the execution procedure for provisional seizure after receiving the dividends from the executing court.

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

(4) (A) The Plaintiff asserted that since the voluntary adjustment amount of KRW 7 billion was reserved for dividends, the Plaintiff did not have any cause attributable to the Plaintiff’s failure to pay the said KRW 7 billion.

However, it is judged that there was a cause attributable to the Plaintiff for delay in the performance of the amount equivalent to the amount of the reserve fund for dividends, if the obligor cannot defend the damages due to the default of monetary obligation without any negligence (the latter part of Article 397(3) of the Civil Code), and if considering the facts and circumstances recognized under (b) and (c). Therefore, the Plaintiff’s above assertion is without merit.

(B) Comprehensively taking account of the overall purport of arguments set forth in Gap 4, 6, 7, 10 through 18, Eul 1 through 9 (including serial numbers) and the following facts may be acknowledged. ① Voluntary adjustment of this case shall be paid to the defendant not later than December 8, 2009, and the above amount shall be paid by adding damages for delay calculated at 20% per annum from the date following the due date to the due date for payment (Paragraph 1) to the defendant's 33,750 shares of the defendant's company, and the share certificates shall be delivered to the defendant. ② The defendant shall not be required to pay the plaintiff's share certificates at KRW 200,000,000,000 to the defendant's share certificates at KRW 20,000,000,000,000,000,000,000 won and KRW 20,000,000,00.

(C) According to the above facts, the following can be inferred to defer the situation of the court of execution. The monetary payment obligation under Paragraph (1) of the instant conciliation protocol does not appear to be the simultaneous implementation relationship with the obligation to deliver sovereignty under Paragraph (2). Nevertheless, the Plaintiff submitted to the executing court a written opinion that if the consideration conditions are not withdrawn on the ground that the Defendant’s deposit of sovereignty is unfair, the payment of the dividend reserve deposit should not be made to the Defendant. The Plaintiff’s dissenting opinion as above was submitted, and the executing court did not designate the date of distribution until the Plaintiff and the Defendant submitted the agreement.

(5) Limitation on the Plaintiff’s damages for delay

(A) However, in the event that the receipt of the Defendant’s dividend reserve deposit is delayed, the voluntary adjustment of the instant case was established (as of December 15, 2009) and the payment of dividends was also erred by the Defendant who requested a executing court to pay dividends on February 2, 2010, and such mistake also appears to have caused the occurrence and expansion of damages arising from the Plaintiff’s delay of performance. Thus, such points should be considered in determining the scope of the Plaintiff’s delay liability.

(B) In addition, in light of all the circumstances, including the details and contents of the instant case, the amount of damage, and the degree of negligence of the Defendant, it is adequate to set the Defendant’s fault ratio at 20%. Therefore, the Plaintiff is liable for delay for the Defendant within the scope of KRW 662,794,520, which is 828,493,150, the above delay damages amount.

3. The modified part

On January 8, 2011, the day following the delivery of a copy of the complaint in this case, the court of first instance asserts that “The above claim for return of unjust enrichment was extinguished within the extent equal to KRW 662,79,453 (=676,153,973 -62,794,520)” and that the defendant is liable to pay to the plaintiff money from January 8, 201 to July 23, 201 (the plaintiff is liable to pay damages for delay as to the above unjust enrichment from July 23, 2010). However, the debtor is liable for delay only when he receives a claim for payment without a fixed period for payment (Article 387(2) of the Civil Act). Thus, the defendant's assertion that the plaintiff's claim for unjust enrichment in this case had been made to the defendant prior to the institution of the suit in this case by 662,794,520,000,0000).”

4. Conclusion

Therefore, the plaintiff's claim of this case is reasonable within the above scope of recognition, and the remaining claims shall be dismissed as it is without merit. Since the judgment of the court of first instance is partially unfair with the conclusion, the plaintiff's appeal is partially accepted, and the plaintiff's claim is revoked and accepted within the above scope of recognition, and the remaining appeal of the plaintiff is dismissed as it is so decided as per Disposition.

Judges Park Jong-dae (Presiding Judge)