[1] Method of distinguishing between the general sales contract and the consignment sales contract

[2] Whether a principal can exercise the right of repurchase (alternative right of repurchase) against a claim, etc. acquired by a commission agent, who is declared bankrupt, in return for a commission agency (affirmative)

[3] The nature of the right to claim restitution of unjust enrichment equivalent to the amount of tax acquired by the truster against the bankrupt estate in a case where a foreign government forced collection of a claim, which is the object of the truster's right to claim restitution of unjust enrichment based on its tax claim

[4] Whether the amount distributed as a bankruptcy claim by reporting the estate claim as a bankruptcy claim can be appropriated for the repayment of the estate claim (affirmative)

[1] The essence of a consignment sales contract is to purchase or sell goods under the name of a third party and to receive remuneration for their purchase or sale under the name of a third party. Thus, whether a contract constitutes a general sales contract or a consignment sales contract should be determined by focusing on the substance of a contract, regardless of its name or formal language.

[2] Articles, 103 of the former Bankruptcy Act (repealed by Article 2 of the Addenda to the Debtor Rehabilitation and Bankruptcy Act, Act No. 7428 of March 31, 2005). If a commission agent goes bankrupt after the commission agent received goods or securities from his/her principal, the principal has the right to redeem the said goods or securities pursuant to Article 79 of the former Bankruptcy Act, and the commission agent acquires goods, securities, or claims acquired from his/her principal as consideration for the commission agency, from his/her principal to the principal or the principal of the commission agent’s creditor, the principal may seek a transfer of such goods, securities, or claims with the subject-matter of the right to repurchase under Article 83(1) of the former Bankruptcy Act (amended by Act No. 7428 of March 31, 2005).

[3] If a foreign government, based on the right to claim a tax against a commission agent who is declared bankrupt by the Korean National Institute, forcibly collects goods, securities, or claims which are the object of the principal's right to claim a refund, the principal's tax liability is extinguished and the commission agent's bankrupt estate obtains unjust enrichment equivalent to the same amount. In this case, the principal has the right to claim a return of unjust enrichment against the commission agent's bankrupt estate. This is an estate claim under Article 38 subparagraph 5 of the former Bankruptcy Act (repealed by Article 2 of the Addenda to the Debtor Rehabilitation and Bankruptcy Act, Act No. 7428, Mar. 31, 2005).

[4] Under the former Bankruptcy Act (repealed by Article 2 of the Addenda to the Debtor Rehabilitation and Bankruptcy Act, Act No. 7428 of March 31, 2005), an estate claim shall be repaid from time to time without going through bankruptcy procedures, but a bankruptcy claim shall be repaid in preference to a bankruptcy claim. Even if an estate claim is reported as a bankruptcy claim and the estate claim is confirmed as a bankruptcy claim and received a distribution as a bankruptcy claim, the nature of the claim does not change into a bankruptcy claim as a matter of course, and thus, the amount received can be appropriated

[1] Article 101 of the Commercial Act / [2] Article 103 of the Commercial Act, Article 79 of the former Bankruptcy Act (repealed by Article 2 of the Addenda to the Debtor Rehabilitation and Bankruptcy Act, Act No. 7428 of March 31, 2005), Article 83 (1) of the former Debtor Rehabilitation and Bankruptcy Act (see current Article 407 of the Debtor Rehabilitation and Bankruptcy Act), Article 83 (1) of the former Debtor Rehabilitation and Bankruptcy Act (see current Article 410 (1) of the Debtor Rehabilitation and Bankruptcy Act), Article 103 of the Commercial Act / [3] Article 103 of the Commercial Act, Article 38 subparagraph 5 of the former Debtor Rehabilitation and Bankruptcy Act (repealed by Article 2 of the Addenda to the Debtor Rehabilitation and Bankruptcy Act, Act No. 7428 of March 31, 2005), Article 83 (1) of the former Debtor Rehabilitation and Bankruptcy Act (see current Article 410 (1) of the Debtor Rehabilitation and Bankruptcy Act) / [4]

Abandoned Automobile Co., Ltd. (Attorneys Lee Im-soo et al., Counsel for the plaintiff-appellant)

The bankruptcy trustee of a bankrupt company (Law Firm Spah, Attorneys Park Dong-dong et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2003Na20932 delivered on December 10, 2004

The appeal is dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

As the essence of a consignment sales contract is to purchase or sell goods under the name of a third party and to receive remuneration under the name of a third party, it is to distinguish the name from that of a third party. Thus, whether a contract is a general sales contract or a consignment sales contract is a general sales contract shall be determined by focusing on the substance of a contract, regardless of

After compiling the evidence of employment, the lower court acknowledged the facts as indicated in its reasoning. ① The Plaintiff and the term “ ” are as follows: (i) the export contract of Niiiiiii Annbide de Prone (hereinafter “private wave”) concluded on November 29, 192 between the Plaintiff and Nibibi (hereinafter “export Basic Agreement”) is based on the fact that the export contract of Nibibibibi (hereinafter “Fibibibibibibiiiiiiiiiiiiiiiiiiiiiiii) is not an export contract of Nibibibiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiii) provides all kinds of technology necessary for the Plaintiff’s domesticization of the Hibibiiiiiiiiiiiiiiiiiiiiiiiial parts; and (iii) the Plaintiff’s failure to pay the price to the Plaintiff for export sale; (iv) the Plaintiff’s failure to pay the price for the goods in the form of an export agreement is included in the terms and conditions of export agreement between the Plaintiff 10.

In light of the above legal principles and the records, such judgment of the court below is just, and there is no error of misapprehending the legal principles as to consignment sale or violating the rules of evidence.

2. Regarding ground of appeal No. 2

A. Articles, 103 of the former Bankruptcy Act (amended by Act No. 7428 of Mar. 31, 2005) and 79 of the former Bankruptcy Act (amended by Act No. 7428 of Mar. 31, 2005), i.e., goods or securities acquired by a commission agent from his/her principal, or goods, securities, or claims acquired from his/her principal from his/her principal, are deemed to be the ownership or claims of his/her principal (Article 103 of the Commercial Act). In cases where a commission agent goes bankrupt after the commission agent received goods or securities from his/her principal, the principal has the right to redeem the said goods or securities pursuant to Article 79 of the former Bankruptcy Act (amended by Act No. 7428 of Mar. 31, 2005), i.e., the principal’s right to claim restitution of unjust enrichment from his/her principal to the bankrupt estate. Meanwhile, the latter’s right to claim restitution of unjust enrichment from his/her domestic law is deemed to be a foreign government’s right to seek.

B. According to the facts and records acknowledged by the court below, on May 23, 200, a neglected company was ordered to commence corporate reorganization proceedings at the Seoul District Court on November 29, 200, and the abolition decision was finalized on December 15, 200, and was declared bankrupt at the same time on December 15, 200. The government recognized that the neglected company was in arrears with the Government from 1995 to 1998 on the ground that it was in arrears with its taxes, the amount of taxes in arrears was 30,377,791,874, and collected the amount of taxes in arrears at around July 15, 201 to collect the amount of 3,82,067, among the unpaid claims against the neglected company's failure to collect the amount of taxes in arrears at around July 15, 201, the government was obligated to collect the amount of taxes in USD 27,214,583,675,7147.75.

If so, according to the above legal principles, although the non-refluence claim against the non-refluent company due to the bankruptcy of the neglected company is the object of the plaintiff's right of repurchase, which is the truster, the plaintiff's right of repurchase. However, as the government forced collection of the above non-refluent claim of USD 3,822,067 among the non-refluent claims for export due to the default of tax, the neglecting company's obligation to pay taxes to the government is extinguished and thereby the bankruptcy estate of the neglected company obtains unjust enrichment, and accordingly, the plaintiff's right of return of unjust enrichment against the defendant is a estate claim. In addition, as long as unjust enrichment is established, the defendant paid the remainder after receiving a partial refund from the government and deducting the expenses incurred in the delegation of duties to the bankruptcy foundation, the above expenses cannot be deemed as the export expense to be borne by the plaintiff under the contract for the supply of goods between the plaintiff and the neglected company, and the remaining amount to the plaintiff is not returned to the plaintiff.

The judgment below to the same purport is just in its conclusion, and there is no error in the misapprehension of legal principles as to the establishment of a claim for return of unjust enrichment, the scope of unjust enrichment, or estate claims, or in violation of the rules of evidence, which affected the conclusion of the judgment.

3. As to the third ground for appeal

The estate claim under the former Bankruptcy Act shall be repaid at any time without resorting to bankruptcy procedures, and it shall be repaid in preference to the bankruptcy claim (Article 40, Article 41 of the former Bankruptcy Act), and even if the estate claim is reported as a bankruptcy claim and the estate claim is confirmed as a bankruptcy claim and received a distribution as a bankruptcy claim, the nature of the claim does not change into a bankruptcy claim as a matter of course. Thus, the dividend amount can be appropriated for the estate claim.

In the same purport, the court below's decision is just in holding that the plaintiff filed a bankruptcy claim as to the estate claim in this case and appropriated the dividend that he received twice from the trustee in bankruptcy as damages for delay on the estate claim in this case, and there is no violation of law such as misunderstanding of legal principles as to the appropriation of claim as

The assertion in the grounds of appeal is without merit, as seen in the judgment on the second ground of appeal, that the right to claim restitution of unjust enrichment in this case is not a estate claim but a bankruptcy claim, and thus, it cannot be accepted as it is without merit without further review.

4. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Hwang-sik (Presiding Justice)