Plaintiff 1 and eight others

00 Mamaman Housing Reconstruction Project Association (Special Representative Kim Hong-do)

August 28, 2013

Incheon District Court Decision 2011Da101017 Decided August 30, 2012

1. The part concerning the conjunctive claim against the defendant in the judgment of the court of first instance shall be modified as follows:

A. The Defendant shall pay to Plaintiffs 1 and 2 4,00,000, and to Plaintiffs 4,000,000, respectively, 2,500,000 won to Plaintiffs 4, and 5, respectively, and 1,50,000 won to Plaintiffs 6, 7, 8, and 9 respectively, and 5% per annum from January 15, 2012 to September 25, 2013, and 20% per annum from the next day to the date of full payment.

B. The plaintiffs' remaining conjunctive claims against the defendant are dismissed.

2. Of the total litigation costs arising between the plaintiffs and the defendant, 1/2 shall be borne by the plaintiffs, and the remainder by the defendant, respectively.

3. The above paragraph 1(a) may be provisionally executed.

4. It is corrected that “the primary claim of the plaintiff is dismissed” is added to the text of the judgment of the court of first instance.

1. Purport of claim

Main and Preliminary, the Defendant paid 10,00,000 won to the Co-Defendant 1 of the first instance trial and the respective plaintiffs 1 and 2, respectively, and 8,00,000,000 won to the plaintiffs 3, respectively, and 5,000,000 won to the plaintiffs 4 and 5, respectively, and 3,00,000,000 won to the plaintiffs 6, 7, 8, and 9 respectively, and 20% interest per annum from the day after the date of final delivery of the copy of the complaint of this case to the day of full payment.

2. Purport of appeal

The part against the defendant in the judgment of the first instance is revoked, and all the plaintiffs' claims against the defendant are dismissed.

1. Scope of the judgment of this court;

In the first instance court, the plaintiffs filed a claim against the defendant and the co-defendant 1 of the first instance court for the return of loans, and the conjunctive claim for reimbursement of expenses arising from office management. The court of first instance dismissed the plaintiffs' primary claim and accepted the conjunctive claim, and only the defendant appealed against the judgment of the first instance court, the scope of the judgment of this court is limited to the part concerning the conjunctive claim against the defendant of the first instance court.

2. Basic facts

A. The Defendant is the co-implementer and the co-contractor of the instant reconstruction project, and the co-defendant 1 of the first instance court concluded a contract for the distribution of investment profits with the non-party company to the non-party company for the investment profit distribution of the instant reconstruction project, and the co-defendant 1 is the non-party company with the claim for investment profits distribution against the non-party company.

B. On December 208, the Defendant and the Co-Defendant 1 of the first instance trial (hereinafter “Defendant, etc.”) filed a lawsuit of demurrer against the third party (hereinafter “third party’s lawsuit”) at the same time, in order to prevent compulsory execution based on the original copy of the judgment of provisional execution (hereinafter “each judgment of this case”) with which the Defendant, etc. had the executory power of the sale price in each of the instant case against the buyers listed in the attached list of Nonparty Co-Defendant 1 of the first instance trial (hereinafter “Defendant, etc.”) around December 2, 2008, in order to prevent compulsory execution based on the original copy of the judgment of provisional execution (hereinafter “each judgment of this case”). On January 22, 2009, the Defendant, etc. filed an application of suspending compulsory execution with the court of this case (hereinafter “instant third party’s lawsuit”). On January 22, 2009, on the condition that the Defendant, etc. deposited KRW 50 million as security, the compulsory execution was suspended by each of the judgment of this case (hereinafter “suspension”).

C. The remaining Plaintiffs except Plaintiff 7 and Plaintiff 8 were the Defendants of each of the instant judgments. The Plaintiffs, as indicated in the Defendant, etc.’s attorney-at-law’s lawsuit filed by the third party to Nonparty 4, remitted KRW 50 million in total to the Defendant, etc.’s account as indicated in the lower list. On March 25, 2009, the Defendant, etc. deposited KRW 50 million as the secured amount of the instant decision to suspend compulsory execution on the ground that the Defendant, etc. deposited KRW 1707 of this Court as the principal deposit in the non-party company on March 25, 2009.

Plaintiff 1, 200,000 won on February 11, 2009, KRW 20 million on February 11, 2009, KRW 3,000,000 on February 5, 2009, KRW 4,000,000 on March 12, 2009, KRW 4,000 on March 5, 2009, KRW 5 million on February 2, 2009, KRW 5 million on February 6, 2009, KRW 5 million on February 3, 2005, KRW 6,000,000 on February 3, 209, KRW 300,000 on February 3, 209, KRW 7,709,000 on February 3, 200, KRW 9,000 on February 3, 209, KRW 9,7,000.

[Ground of recognition] The fact that there has been no dispute, Gap's 1 through 3, 5 through 11 (including the number of branch offices), Eul's 3, 4, Eul's 5-1, 3-1, 5-3, and the purport of the whole pleadings

3. Determination on the defense prior to the merits

The defendant alleged that the plaintiff 1, 7, and 8 were not the defendant of each judgment of this case, or they were not the buyers listed in the separate sheet, and therefore they are not qualified as the plaintiff. However, in the lawsuit for performance, the standing to be a party is the person who asserts that the right to demand performance exists, which is a subject matter of lawsuit, and whether the right to demand performance exists or not, shall be proved through the deliberation of the merits (see Supreme Court Decision 2003Da44387, 44394, Oct. 7, 2005). The defendant's prior defense on the merits is without merit.

4. Judgment on the merits

A. The parties' assertion

The plaintiffs asserted that the plaintiffs' burden of payment on behalf of the defendant, etc. constitutes a work management under Article 734 of the Civil Act, and that the defendant, etc. has a duty to reimburse the plaintiffs' expenses incurred for work management, as stated in their claims.

The defendant, in substance, brought a lawsuit by the third party to be exempted from compulsory execution against the rest of the plaintiffs except the plaintiffs 7 and 8 who were the defendants of each judgment of this case. Thus, the defendant asserts that the plaintiffs' burden of deposit cannot be deemed to have done the affairs of the defendant, etc. who was the other party, and that the administrative management cannot be deemed to have been established because it is disadvantageous to the defendant, etc.

B. Determination

In order to establish the office management, it is necessary to consider that the office work is another person’s business and that there is an intention to transfer the actual interest of the management to another person, i.e., the intention to manage the office work on behalf of the other person, as well as that it is not clear that the processing of the office work is unfavorable to the principal or it goes against his own will (see Supreme Court Decision 2009Da71558, Feb. 11, 201). The following circumstances can be acknowledged by comprehensively taking into account the overall purport of the pleading No. 2 and No. 5-1 and No. 3. 1 and the third party’s lawsuit against the above third party’s financial institution as the execution bond against the above 00 company’s claim for the payment of the deposit claims against the non-party company’s 10 company’s financial institution, and it is difficult for the plaintiffs to accept the claim and collection order against the non-party company’s non-party 2 as the execution bond against the non-party company’s non-party 1.

Therefore, the defendant et al. has a duty to reimburse the plaintiffs' expenses incurred for the management of affairs. On the other hand, where there are several debtors of monetary obligations, each debtor shall bear the duty at an equal rate unless there is any special declaration of intention.

5. Conclusion

Therefore, the defendant is entitled to KRW 5,00,000 for each of the plaintiffs 1 and 2 (i.e., KRW 10,000 x 1/2), and KRW 4,000,00 for the plaintiff 3 (i.e., KRW 8,000,000 x 1/2), respectively, 2,500,000 for the plaintiff 4 and 5 (i.e., KRW 5,000 x 1/2), respectively; 6, 7, 8, and 9 respectively; 1,500,000 for each of the above funds (i.e., KRW 3,00,000 x 1/2) and for each of the above funds, and there is no reason to dismiss the plaintiff's claim for additional damages from the date of final delivery of a copy of the complaint of this case by the court of first instance for the reasons to acknowledge that the defendant had an obligation to pay some of the plaintiff's damages to the plaintiff 1 and the above.

[Attachment Parcellingers list and omission of the defendant's decision of seizure and collection]

Judge Kang Jin-hun (Presiding Judge)