The bankruptcy trustee of the bankrupt Special Metropolitan City Development Corporation 1

Co-Litigation Intervenor (Law Firm LLC, Attorneys Choi Won-young et al., Counsel for the plaintiff-appellant)

Korea Deposit Insurance Corporation (LLC, Kim & Lee LLC, Attorneys Jeon Byung-hee et al., Counsel for the plaintiff-appellant)

Han-dong Housing Association (Law Firm LLC, Attorneys Choi Won-young et al., Counsel for the plaintiff-appellant)

Single School Foundation and one other (Law Firm, Attorneys Lee Lee-soo et al., Counsel for the plaintiff-appellant)

April 7, 2011

Seoul Central District Court Decision 2009Da16457, 2009Gahap124747 decided February 5, 2010

1.The judgment of the first instance shall be modified as follows:

(a) dismiss the action of the co-litigants;

B. The Defendants jointly and severally pay 21,967,062,230 won to the succeeding intervenors and co-litigants and 20,185,65,651,635 won among them and 7,310,854,937 won from November 21, 2007 to February 5, 2010; 12,874,796,698 won per annum until May 19, 201; and 20% per annum from the following day to the date of full payment.

C. The remaining claims of the plaintiff and the co-litigation intervenor are dismissed.

2. The total costs of the lawsuit incurred between the succeeding intervenor, the supplementary intervenor and the Defendants are borne by the Defendants, and the total costs of the lawsuit incurred between the co-litigation intervenor and the Defendants are borne by the co-litigation intervenor.

3. Paragraph 1-b. above may be provisionally executed.

The purport of the claim by the succeeding intervenor: The defendants shall jointly and severally pay 20,185,651,635 won to the succeeding intervenor of the plaintiff and co-litigation (hereinafter referred to as the " succeeded intervenor") and 6% per annum from October 22, 2005 to the service date of a duplicate of the complaint of this case, and 20% per annum from the next day to the day of complete payment.

The purport of co-litigation: The defendants shall jointly and severally pay 6% interest per annum from October 22, 2005 to the delivery date of a copy of the application for co-litigation from October 22, 2005 to the date of the delivery of a copy of the application for co-litigation, and 20% interest per annum from the next day to the date of full payment. The defendants shall make payment to the plaintiff or the intervenor by deposit of the collection amount of this case [1 billion won in the first instance court and its delay damages were claimed by the intervenor, and the court of first instance ordered the defendants to pay to the intervenor 10,03,207,469 won beyond the scope of the claim and its delay damages. Accordingly, the intervenor revoked the part of the judgment of the first instance court against the intervenor, as seen below, and extended the claim for damages for the 100 million won and its delay damages.]

The purport of the appeal by the plaintiff (Withdrawal): The part against the plaintiff falling under the following of the judgment of the court of first instance shall be revoked. The defendants shall jointly and severally pay to the plaintiff 12,874,796,698 won and the amount calculated at the rate of 6% per annum from October 22, 2005 to the service date of a copy of the complaint of this case, and 20% per annum from the next day to the day of full payment.

The purport of the Intervenor’s appeal: The part against the Intervenor falling under the part of the judgment of the first instance against which payment is ordered under the following subparagraphs shall be revoked. The Defendants jointly and severally pay to the Intervenor the amount calculated at the rate of 6% per annum from October 22, 2005 to the service date of a duplicate of the application for intervention in the instant co-litigation, and 20% per annum from the next day to the day of full payment. The Defendants shall deposit the collection of the instant claim against the Plaintiff or the Intervenor by deposit.

The purport of appeal by the Defendants: The part against the Defendants in the judgment of the first instance shall be revoked, and the claims of the Plaintiff and the Intervenor falling under the revoked part shall be dismissed.

1. Changes in the status of parties;

(1) In the Seoul Central District Court case No. 2010Hahap57, Sep. 8, 2010, the Seoul Central District Court sentenced the bankruptcy against the Sejong Sejong District Court on September 10, 2010, and appointed Nonparty 1 as the bankruptcy trustee.

(2) On March 7, 2011, the trustee in bankruptcy filed an application for intervention in the lawsuit against the Plaintiff and the Intervenor on the ground that the right to collect the claim for the refund of the purchase price, which is the subject matter of the lawsuit in this case, was restored from the Plaintiff and the Intervenor and succeeded to that right.

(3) On March 9, 2011, the Korea-dong Housing Association applied for the intervention of the succeeding Intervenor, and the Korea Deposit Insurance Corporation of the Plaintiff’s New Financial Corporation filed an application for the intervention of the succeeding Intervenor upon withdrawal from the lawsuit on April 7, 2011.

2. Quotation of judgment of the first instance;

The reasoning for this court's reasoning is that "the basic facts" and "the judgment on the main safety defense" are used in both "the plaintiff (ex officio)" and the part concerning "1.8 billion won and damages for delay" in the main safety defense are deleted (the succeeding intervenor does not claim part concerning 1.8 billion won and damages for delay). Thus, it is identical to the reasoning for the judgment of the first instance court. Thus, it is accepted in accordance with Article 420 of the Civil Procedure Act.

3. Judgment on the Intervenor’s standing to sue

According to Articles 348(1) and 424 of the Debtor Rehabilitation and Bankruptcy Act, compulsory execution against a property belonging to the bankrupt estate based on a bankruptcy claim shall lose its effect against the bankrupt estate, and the bankruptcy claim shall be exercised pursuant to the bankruptcy procedure. Since the claim for the refund of the purchase-price against the Defendants in the Sejong Special Metropolitan City, which is a seized claim in the collection order of this case, belongs to the bankrupt estate due to the bankruptcy in the Sejong Special Metropolitan City, the claim for the refund of the purchase-price against the Defendants against whom the seizure order of this case was attached, the intervenor’s seizure and collection order of this case lost its effect, and accordingly, the intervenor lost

4. Judgment on the merits

A. Determination on the cause of the claim

According to the above facts, the successor's claim for the refund of the purchase price of this case, which the successor is entitled to claim against the defendants, shall be limited to 20,185,651,635 won, and damages for delay (in relation to this, the successor's claim shall be limited to 158,450,030,554 won) the total amount of the claim for the payment of the purchase price of this case (128 billion won) under the assignment order of this case, and to 20,185,651,635 won, which are the remainder after deducting the adjusted amount (158,450,030,554 won) from the claim amount of the plaintiff (ex officio) from the claim amount of the plaintiff (ex officio) under the assignment order of this case, and the remaining part of the claim amount of the plaintiff (ex officio) from the appeal of the total payment lawsuit is established. Accordingly, the successor's claim against the plaintiff (ex officio) is groundless.

Therefore, the Defendants are jointly and severally liable to pay to the succeeding intervenor KRW 20,185,651,635 and damages for delay.

B. Determination as to the defendants' defense of the expiration of extinctive prescription

(1) Defendants’ defenses

The Defendants asserted that the extinctive prescription of KRW 1.8 billion was terminated by the final and conclusive judgment of a purchase price lawsuit against the Defendants, and KRW 1.8 billion in total, and KRW 60 billion in total, of the preserved claims against each of the instant provisional attachment orders was interrupted. However, the extinctive prescription had already been terminated before the issuance of the instant collection order, and the remainder of the claims remaining after deducting the above portion was extinguished after the extinctive prescription had already been completed. ① The part ② was entirely and completely extinguished to the Plaintiff (ex officio) in accordance with the judgment of the Plaintiff (ex officio) based on the instant assignment order, and ultimately, the extinctive prescription of

The claim for the refund of the purchase price reaches the due date due to the occurrence of August 1999 by the Defendants, who expressed their intent to cancel the instant sales contract against Sejong, and the above claim reaches the due date pursuant to Article 64 of the Commercial Act, since the period of extinctive prescription is five years pursuant to Article 64 of the Commercial Act, the claim for the refund of the purchase price, which is a part of the entire claim for the refund of the purchase price, was completed on August 19, 199, which was five years after the date of cancellation of the instant sales contract, unless there are special circumstances.

(2) Judgment on the re-defense of the succeeding intervenor

The succeeding intervenor, based on a written decision in lieu of the conciliation of the aforementioned entire amount lawsuit, made by the Defendants to the Plaintiff (ex officio) on November 30, 2008, and paid out KRW 128 billion, which is part of the obligation to refund the purchase price. Thus, the Defendants’ assertion that the Defendants renounced the benefits of the completion of extinctive prescription.

In light of the foregoing, if an obligor partly repaid an obligation after the completion of the extinctive prescription, the obligor shall be deemed to have impliedly approved the entire obligation unless there is any dispute as to the amount of the obligation. In this case, it shall be presumed that the obligor renounced its benefit with the knowledge of the completion of prescription (see Supreme Court Decisions 2001Da3580, Jun. 12, 2001; 2010Da6345, May 13, 2010).

In light of the above facts, the Defendants asserted the completion of the extinctive prescription in the entire payment lawsuit, but the court of first instance rejected the Plaintiff’s assertion; the court of first instance rejected the completion of the extinctive prescription and recognized the Defendants’ obligation to repay; the Defendants repaid to the Plaintiff (ex officio) on November 30, 2008, part of the obligation to repay the purchase price upon the compulsory adjustment; and the Defendants, at the time of the conciliation or at the time of the repayment, made an express reservation that the waiver of the benefits of the completion of the extinctive prescription is limited to the above payment, which is part of the obligation to return the purchase price, and there is no specific reservation that the waiver of the benefits of the completion of the extinctive prescription at the time of the conciliation or at the time of the repayment is limited to the above payment, which is a part of the obligation to return the purchase price. In this case, the Defendants should be deemed to have impliedly acknowledged the entire obligation by partially repaying the obligation

C. Determination as to the defendants' defense of repayment

(1) Defendants’ defenses

The defendants paid the collection amount to the non-party 3 and the non-party 6 (hereinafter referred to as the "non-party 3, etc.") who are creditors of the Sejong-do, or received the judgment against the non-party 4 who acquired the claim from the Sejong-do, and received the lawsuit of claim for the takeover of the claim. Thus, the defendant's assertion to the effect that the collection amount paid to the non-party 3, etc. and the amount equivalent to the takeover amount to the non-party

(2) Determination

㈎ 먼저 소외 3 등에 대한 추심금 지급금 공제 주장에 대하여 본다.

In addition to the purport of the entire argument in the statement in Eul evidence Nos. 11 through 13, the non-party 3 and the non-party 6 (hereinafter "non-party 3, etc.") who are creditors of Sejong-do (hereinafter "non-party 3, etc.") on July 3, 2007, based on the original copy of the payment order No. 2007Tnam District Court 2007Guknam District Court 2007Hu8421, the Seoul Southern-do District Court 2007Hu8421, which was executed as the creditor of Sejong-do, issued a seizure and collection order against the total amount of KRW 740,413,280, and the non-party 3, etc. received the above payment order against the non-party 4, which became final and conclusive on July 3, 2007; the non-party 3, etc. shall receive the above collection order under the above collection order No. 2007Da413280, Apr. 27, 2017.

㈏ 다음으로 소외 4에 대한 양수금 공제 주장에 대하여 본다.

을 제14호증의 1, 2의 각 기재에 변론 전체의 취지를 더하면, 소외 4는 서울서부지방법원에 피고 단국대를 상대로 주식회사 코리아찝으로부터 양수한 세경에 대한 채권의 지급을 구하는 소를 제기하여 2009. 7. 3. 위 법원 2009가합2477호 로 피고 단국대는 소외 4에게 173,559,400원 및 이에 대한 지연손해금을 지급하라는 판결이 선고된 사실은 인정되나, 위 인정사실만으로 피고 단국대가 실제로 소외 4에게 판결금을 지급하였다고 보기 어렵고, 달리 이를 인정할 만한 증거도 없으므로, 위 양수금을 이 사건 채권에서 공제할 수는 없다.

㈐ 따라서 2007. 11. 20. 현재 이 사건 매매대금채권의 원리금은 22,707,475,510원[= 원금 합계 20,185,651,635원 + 지연손해금 2,521,823,875원{= 20,185,651,635원 × (2 + , 2005. 10. 22.부터 2007. 11. 20.까지) × 6%}]인바, 피고 단국대가 위 지급명령에 기하여 지급한 추심금 740,413,280원을 민법 제477조 에 따라 지연손해금에 충당하면, 남은 채권의 원리금은 합계 21,967,062,230원[= 22,707,475,510원 - 740,413,280원]이 된다.

D. Sub-determination

Therefore, the Defendants are jointly and severally liable for the 21,967,062,230 won and the principal of 20,185,651,635 won and 20,185,651,635 won from November 21, 2007 to 7,310,854,937 won from the date following the date of the payment of the above collection amount, to resist the existence and scope of the Defendants’ obligation to perform the obligations until February 5, 2010, which is the date of the first instance judgment, the date of the first instance judgment, for the amount of KRW 12,874,796,698, the Defendants are jointly and severally liable to pay damages for delay calculated at the rate of 20% per annum under each Commercial Act until May 19, 201, which is the date of the first instance judgment, and from the following day to the date of full payment.

5. Conclusion

Therefore, the intervenor's lawsuit is unlawful and dismissed, and the plaintiff's claim against the defendants against the succeeding intervenor is justified within the scope of the above recognition, and the remaining claims are dismissed as it is without merit. It is so decided as per Disposition.

Judges Kim Chang-ju (Presiding Judge)