Crocom Co., Ltd. (Law Firm New Village, Attorney Song-chul et al., Counsel for defendant-appellant)

Defendant (Law Firm Lee & Lee, Attorneys Lee In-bok et al., Counsel for defendant-appellant)

January 16, 2013

1. On July 18, 2012, the Bank confirmed that the right to claim for withdrawal of KRW 70,904,881 deposited by the Seoul Central District Court No. 13808 in gold year 2012 was the Plaintiff.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Basic facts

A. On May 2, 2005, the Defendant sold to the Plaintiff all shares of the increased information and communications for KRW 2 billion and retired from the office of representative director of the increased information and communications company (hereinafter “indication information and communications”), who is the representative director of the said company and the shareholders who are virtually one.

B. On November 23, 2005, the Plaintiff, a stock company that manufactures and sells telecommunications equipment, purchased shares from the Defendant as above, and merged risen information and communications technology on November 23, 2005.

C. On December 31, 2001, the increased information and communications technology concluded a retirement trust agreement with the Industrial Bank of Korea as a trustee (hereinafter “instant retirement trust agreement”), and relevant details are as follows.

Article 1 (Purpose of Trust) The truster shall trust the trust money for the purpose of paying the retirement allowance at the time the beneficiary causes the payment of the retirement allowance, and the trustee shall accept it for the management, operation and payment of this trust money.

§ 4 (Beneficiary) (1) The beneficiaries of this trust shall be those entered in the list of subscribers submitted by the truster, and the list of subscribers shall include all persons entitled to receive retirement allowances in the future in accordance with the provisions relating to retirement allowances of the truster.

(2) A beneficiary referred to in paragraph (1) shall be deemed to acquire the right to benefit when the grounds for payment of retirement benefits arise.

Article 5 (Trust Period) The period of this Trust shall be from the trust contract date to the termination date or last day of the trust contract.

§ 23 (Final Calculation and Delivery of Trust Money) (1) When this trust terminates or terminates, the trustee will pay the termination trust money to the beneficiary an amount calculated by multiplying the estimated amount by the reserve ratio (ratio of trust money to the estimated amount of retirement benefits at the time of termination) within the limits of the estimated amount of retirement benefits for each beneficiary.

Article 28 (Return of Trust Property) (1) The trustee shall not return the trust property to the truster.

(2) Notwithstanding the provisions of paragraph (1), if there is any residual property after delivering the trust property to the beneficiary as a result of the final calculation under Article 23, I shall return it to the truster.

The right to benefit from the trust money of Article 39 (Prescription of Trust Money) If it is not exercised for ten years from the time it is possible to exercise that right, the extinctive prescription shall expire.

D. The list of subscribers and the estimated amount of retirement benefits submitted to the Industrial Bank of Korea, which is the trustee, while entering into the instant retirement trust contract, are indicated in the name of the defendant and the estimated amount of retirement benefits as of December 31, 2001, KRW 17,348,091.

E. Under the instant retirement trust agreement, the Industrial Bank of Korea, a trustee, paid all retirement allowances to the beneficiaries other than the Defendant, among the persons entered in the list of subscribers from the increased information and communications network.

F. On July 18, 2012, the Industrial Bank of Korea deposited KRW 70,904,881, the remaining assets of the instant retirement trust agreement, which were remaining as retirement allowances against the Defendant, with the Defendant or the Plaintiff as the Defendant, on the ground that the identity of the obligee cannot be known.

G. On September 7, 201, the Plaintiff notified the Defendant of the termination of the instant trust agreement on the ground that the Industrial Bank of Korea has no obligation to pay retirement allowances.

[Based on recognition] Gap evidence 1 to 11 (including paper numbers), Eul evidence 1, 2, Eul evidence 1 to 7, response to the Industrial Bank of Korea's order to submit financial transactions, the purport of the whole pleadings as a whole.

2. Summary of the parties’ assertion

A. The plaintiff

1) The defendant is not entitled to receive retirement allowances as the representative director of the increased information and communications network.

2) On May 2, 2005, the Defendant sold all shares of the information and communications technology to the Plaintiff, resigned from the representative director and retired from the office, and in light of the fact that there is no claim for retirement benefits on the information and communications technology for a long time, it should be deemed that there is no right to receive retirement allowances or that the right to receive retirement allowances is waived

3) The extinctive prescription of a retirement allowance claim is three years, and three years have passed since the Defendant retired, and the Defendant’s claim for retirement allowance expired, and the right to benefit based on the claim for retirement allowance also expired by prescription.

4) Even though the right to benefit under the instant retirement trust agreement is a retirement allowance claim and a separate transfer thereof, the extinctive prescription is five years for commercial claims. Since five years have elapsed since the Defendant’s right to benefit occurred, the right to benefit was also extinguished by the extinctive prescription.

5) The instant retirement trust agreement was terminated in accordance with the Plaintiff’s notice of termination, and the Defendant’s beneficial rights were extinguished, and the remaining beneficiaries are paid retirement allowances, and the amount equivalent to the Defendant’s retirement allowances should be returned to the Plaintiff, the truster, and thus, the Industrial Bank of Korea’s right to claim payment of the deposit money

B. Defendant

1) The Defendant has a retirement allowance claim for the increased information and communications technology.

2) The Defendant did not waive his claim for retirement allowance while selling its shares to the Plaintiff.

3) As long as the Defendant acquired the right to benefit and acquired the right to benefit under the instant retirement trust agreement when the grounds for payment of retirement allowances arise due to a separate right, the extinctive prescription of the right to benefit under the instant retirement trust agreement has not yet expired for ten years.

4) Even if the extinctive prescription is a commercial bond, the extinctive prescription was interrupted since the Industrial Bank of Korea, a debtor, did not dispute the obligation to pay earnings, and thus, the extinctive prescription was interrupted.

3. Judgment on the issue

(a) the existence of a claim for retirement allowance;

1) The Defendant’s fact that he was the chief executive officer of the soft Information and Communications as mentioned above. However, in full view of the statements in Gap evidence No. 5, Eul evidence No. 1, Eul evidence No. 2, Eul evidence No. 1, and Eul No. 1 through No. 7, Article 33 of the articles of incorporation of the solar Information and Communications provides that the remuneration or retirement allowance of executive officers shall be made by a resolution of the general meeting of shareholders. Articles 12 and 13 of the Regulations on Personnel Management and Benefit of solar Information and Communications provide that retirement allowance of executive officers shall be paid only to those who have served for one year or more as executive officers and employees, and employees’ retirement allowance shall be paid 30 days’ average wages for one year or more of the continuous service years; employees’ retirement allowance shall be paid as retirement allowance when they retire temporarily; employees and employees shall be paid retirement allowance in accordance with the Labor Standards Act, and all employees and employees shall be treated as retirement allowance allowance or group retirement allowance as the beneficiary of the Defendant’s name, the information and communications company.

In the case of a so-called one company whose total shares were owned by one person after its incorporation, it is obvious that the shareholder will be formed as the general meeting and the resolution will be made according to the intent of the shareholder. Thus, even if there was no actual fact of holding the general meeting, if the minutes of the general meeting were to have been prepared by the single shareholder, it can be deemed that there was a resolution, barring special circumstances. The same applies to the case of a single-person company, and even if the minutes of the general meeting have not been prepared, it can be deemed that there was a resolution of the general meeting by evidence (see Supreme Court Decision 2004Da25123, Dec. 10, 2004).

In light of the following circumstances revealed in the above facts, i.e., payment of retirement allowances to executives who have worked for not less than one year pursuant to Article 12 of the Personnel Management and Benefit Regulations, and Article 13 of the same Act does not separately provide for the method of calculating retirement allowances to employees only and for the calculation of retirement allowances to executives, but also an audit report on increased information and communications under Article 33 of the articles of incorporation and an audit report, the method or amount of calculation of retirement allowances to executives are determined by the general meeting of shareholders. In practice, the calculation of retirement allowances is deemed to have a claim for retirement allowances to executives who have worked for not less than one year. In the case of executives, the calculation of retirement allowances under the Labor Standards Act is deemed to have been made in accordance with the Labor Standards Act. ② The defendant's agreement on the payment of retirement allowances to the beneficiaries who are the representative director of the increased information and communications network and the one-person shareholders with the approval of the insured, and the defendant's agreement on the payment of retirement allowances is reasonable in light of the fact that the increase in information and communications is the defendant's payment of retirement allowances under the Labor Standards Act.

2) Whether the retirement allowance claim or the right to benefit under the instant retirement trust agreement has been waived

As to the plaintiff's assertion that the defendant should not exercise at all the right to retirement pay or the right to benefit under the retirement trust agreement of this case by selling his shares to the plaintiff and obtaining the position of representative director, it is not sufficient to recognize that the defendant has waived his retirement allowance claim or the right to benefit under the retirement trust agreement of this case, and there is no other evidence to prove otherwise.

(b) Extinctive prescription;

As seen above, as the Defendant’s retirement allowance claim is not a retirement allowance claim under the Labor Standards Act, but a claim under an agreement with rise information and communications, the extinctive prescription period is five years, in principle, the commercial prescription period.

However, as shown in the above facts, since five years have passed since the defendant retired from the high information communication, the defendant's retirement allowance claim was extinguished by prescription.

C. Extinctive prescription of the right to benefit under the instant retirement trust contract

1) The Korea Industrial Bank of Korea concluded the instant retirement trust agreement with its officers and employees for the payment of retirement allowances. According to the instant retirement trust agreement, the beneficiary acquired the right to benefit at the time of the occurrence of the causes for payment of retirement allowances. Therefore, the Defendant appears to have acquired the right to benefit under the instant retirement trust agreement by retiring the representative director of the increased information and communications and retiring from office on May 2, 2005.

2) Retirement allowance claims for the increased information and communications and beneficial rights under the instant retirement trust agreement are ultimately premised on the retirement allowance claims for the increased information and communications, but it cannot be deemed that the same claims are different from the grounds for the occurrence of the rights and the obligor, and as long as the beneficial rights under the retirement trust agreement have occurred once the retirement allowance claims were first extinguished due to extinctive prescription, etc., it is reasonable to deem that the beneficial rights under the instant retirement trust agreement are not naturally extinguished.

3) We examine the period of extinctive prescription of beneficial rights under the instant retirement trust agreement.

The fact that the right to benefit with respect to the trust money under Article 39 of the Retirement Trust Contract of this case provides that if it is not exercised for ten years from the time it is possible to exercise the right, the extinctive prescription shall be completed as seen above.

However, the extinctive prescription of five years is applied pursuant to Article 64 of the Commercial Act, since increased information and communication and the Industrial Bank of Korea’s retirement trust agreement and the Defendant’s right to benefit under the instant retirement trust agreement are claims arising out of commercial activities. According to Article 184(2) of the Civil Act, extinctive prescription cannot be excluded, extended, or aggravated by a juristic act, and even if the extinctive prescription period is extended by a juristic act, it shall not be effective in accordance with the above

In the instant case, even if the Health Center, rise information and communication, and the Industrial Bank of Korea agreed to extend the extinctive prescription period of the right to benefit under the instant retirement trust agreement to 10 years more than the original extinctive prescription period, this is no longer effective pursuant to Article 184(2) of the Civil Act. Therefore, it is reasonable to deem the extinctive prescription period of the right to benefit under the Defendant’s retirement trust agreement

As seen above, the Defendant could exercise the right to benefit from May 2, 2005, where the right to benefit under the instant retirement trust agreement was created upon the Defendant’s retirement, and the Defendant’s right to benefit was extinguished after the lapse of five years thereafter.

4) As to this, the Defendant asserts to the effect that the extinctive prescription of the right to benefit has been interrupted by approving the debt owed by the Defendant and depositing the amount corresponding to the Defendant’s right to benefit. Therefore, we examine this point.

On the other hand, as seen above, the Industrial Bank of Korea appears to have deposited its profits on the ground that the creditor of the amount equivalent to the defendant's right to benefit is the plaintiff or the defendant is unknown. In light of such circumstances, it is difficult to recognize the Industrial Bank of Korea as having given up the benefit of prescription by approving the monetary debt owed to the defendant, and there is no other evidence to acknowledge otherwise.

D. Whether the right to claim the payment of the instant deposit belongs to anyone

As seen above, it is reasonable to view that the retirement trust contract of this case was terminated upon the completion of the payment of retirement allowances to all beneficiaries other than the defendant by March 15, 2006 under the retirement trust contract of this case, and the defendant's claim for profits was extinguished by prescription.

Therefore, the Industrial Bank of Korea is obligated to return the Defendant’s remaining property to the Plaintiff, who comprehensively succeeded to the rights and obligations of the truster pursuant to Article 28(2) of the Retirement Trust Contract of this case. Thus, the right to claim for payment of deposit money deposited by the Industrial Bank of Korea shall be

In addition, since the defendant is dissatisfied with this, there is a benefit of confirmation.

4. Conclusion

Therefore, the plaintiff's claim of this case shall be accepted for the reasons and it is so decided as per Disposition.

Judges Kim Jong-soo