New Korean Engineering and Certified Co., Ltd. (Attorney Han Man-chul, Counsel for defendant-appellant)

Han Jin S case, Inc.

Bankruptcy Trustee, a trustee in bankruptcy, who is a trustee in charge of the lawsuit of the bankrupt Cret Trust Co., Ltd. (Attorney Kang Young-chul et al., Counsel for the

October 17, 2003

Seoul District Court Decision 2001Gahap69004 Delivered on October 30, 2002

1. Of the judgment of the court of first instance, the part on the Plaintiff Hanjin case is revoked, and the above Plaintiff’s lawsuit is dismissed.

2. Of the judgment of the court of first instance, the part concerning the office of the new Korea Engineering and Construction Agency of the Plaintiff, Inc. shall be modified as follows:

The above plaintiff has a bankruptcy claim of 195,078,40 won against the defendant and 5% per annum from May 17, 1998 to December 5, 2003, and 20% per annum from the next day to the full payment date.

The plaintiff's remaining claims are dismissed.

3. The total costs of litigation are three minutes for the part arising between the defendant and the office of Korea Engineering and Building Agency, Inc., and one of them is the above plaintiff's and the remainder is the defendant's own expenses, and the part arising between the defendant and Korea Engineering and Building Agency, Inc. shall be the above plaintiff's expense.

1. Purport of claim

A. The new Korean Engineering and Construction Office of the Plaintiff, Inc.: selectively, the Defendant shall pay to the Plaintiff the amount of KRW 303,450,400,00 and the amount of KRW 5% per annum from May 17, 1998 to October 30, 2002, and the amount of KRW 25% per annum from the next day to the full payment date, and the Plaintiff shall confirm that there was a bankruptcy claim against the above amount against the trust by the bankrupt (the above Plaintiff added a selective claim to this court).

B. Plaintiff Hanjin Co., Ltd.: the Defendant shall pay to the Plaintiff 11,718,00 won and each of the above amounts at the rate of 5% per annum from May 17, 1998 to the sentencing day of this case, and 25% per annum from the next day to the day of complete payment.

2. Purport of appeal

A. Purport of appeal

The plaintiffs' claims corresponding thereto are dismissed in entirety by cancelling the part against the defendant in the judgment of the first instance.

B. Purport of incidental appeal

Of the judgment of the first instance, the part against the plaintiff's new engineering certified architect office shall be revoked.

The defendant shall pay to the above plaintiff 108,372,00 won with 5% per annum from May 17, 1998 to the judgment of the appellate court, and 25% per annum from the next day to the full payment day.

1. Basic facts

The reasons stated in this part are the same as the judgment of the court of first instance except for the addition of the following facts, and therefore, they are cited by Article 420 of the Civil Procedure Act.

According to the evidence No. 27-1 (Notice of Claim Report following Bankruptcy Decision), 2 (Bankruptcy Claim Report), 3 (Receipt of Bankruptcy Claim Report), and 4 (Notice of Objection), a Cowre Trust Co., Ltd. (hereinafter the bankrupt) was declared bankrupt on December 30, 2002 by the Seoul District Court Decision 2002Hahap33, and the Plaintiff Korea Engineering Co., Ltd. reported the amount of KRW 303,450,400 as bankruptcy claim, and the amount of KRW 384,592,961 as well as the amount of delay damages therefor. However, the Defendant can be found to have raised an objection to the whole amount.

2. Claims of supervision fees for the plaintiff's new Korean engineering;

A. The plaintiff New Korean Engineering is obligated to pay the above plaintiff 195,078,40 won in the balance of the agreed supervision expenses up to October 31, 1997, under the contract of this case (i.e., the contract amount of KRW 342,912,00 - the received amount of KRW 147,83,600), and the plaintiff Newly Korean Engineering continues to perform supervision duties after the expiration of the supervision period from November 1, 1997 to May 12, 1998. Thus, the defendant asserts that there is a claim of supervision expenses for the extended period.

(b) A claim of the agreed supervision cost by no later than October 31, 1997;

(1) According to each description of Gap evidence No. 2 (Contract for Construction Technology) and Gap evidence No. 3 (Report on the Commencement of Supervision), each of the contract of this case stated "the supervision period from Jan. 22, 1996 to Oct. 31, 197" as "the inspection period is from Oct. 22, 1996 to Oct. 31, 197 (the inspection period is: the supervision service period: the supervision service period between Oct. 22, 1996 and Oct. 31, 1997; the supervision service period shall be 22 months from the commencement date of this contract; the contract period shall not affect the contract amount; the construction supervisor shall be deemed to constitute an assistant supervisor (the construction supervisor), the construction supervisor (the construction supervisor), the construction supervisor (the construction supervisor) shall be deemed to be an assistant supervisor, the construction supervisor (the construction supervisor) shall be deemed to be an assistant supervisor, and the construction supervisor (the construction supervisor) shall be deemed to be an assistant supervisor, the construction supervisor, the construction supervisor, etc.).

(2) According to the above facts, from January 22, 1995 to October 31, 1997, the plaintiff new engineering company and the bankrupt agreed to the supervision period from January 22, 1995, which is the expected time of completion of the construction of the building of this case. Based on this period, the number of supervision personnel was determined, and accordingly, an agreement was made to pay the supervision expenses (as of October 31, 1997, in addition to the time of completion of the supervision, the time of completion of the construction completion as of October 31, 1997, the supervision period shall be extended after the completion of the construction completion inspection as of October 31, 1997, not from the day after the completion of the construction completion inspection until the completion date, the supervision period shall be determined as the supervision period from the day after October 31, 1997 to the date after the completion date of supervision as of October 31, 199, the plaintiff shall be entitled to 1050% of the contract and 205.

(3) On this ground, the Defendant asserts that the Plaintiff’s new engineering and the Defendant is not obligated to pay supervision fees of at least 35.59%, which are the term of construction work in this case, by dividing them into three-month units. However, this is merely an agreement to pay supervision fees in installments if the construction work is scheduled as expected, and the supervisor of the construction work has regularly conducted quality inspections and safety inspections for the purpose of preventing defective construction works in a third-party position. If the construction work is being performed, it is necessary to put the same on the progress of the construction work such as correction, reconstruction, and suspension of the construction work. If the construction work is undertaken as planned, it is likely that the construction work will not observe the schedule by closely examining the causes of the construction work, and as such, it is likely that the construction work will not be performed in proportion to the scheduled terms of construction work in this case, and thus, it is reasonable to deem that the construction work will not be performed in compliance with the supervision agreement without any justifiable nature of the construction work, such as supervision, without any reason that the construction work will not be performed within the construction work.

(d) the portion of the claim for additional supervision costs from November 1, 1997 to May 12, 1998;

Article 30 of the Special Conditions to the Contract of this case provides that, even if the supervision period is extended, the increase in supervision fees shall not be recognized unless the contract price of the construction works in question increases above 10% or there is an important change in business upon the defendant's request. Paragraph 3 of the business instruction provides that, even if the supervision period is extended, it does not affect the contract price even if the construction work is completed, and even if it is changed according to the defendant's circumstances, it does not affect the contract price. The purport of this provision is that, even if the supervision period is extended, additional supervision fees shall not be claimed in addition to the contract amount if it is not due to the defendant's demand, or within a considerable period of time that is ordinarily acceptable. Where the significant change in business or the supervision period is extended for a considerable period of time, it shall be determined through consultation between the parties. There is no evidence to prove the fact that there was an important change in business affairs upon the defendant's request, etc. In addition, the construction work of this case does not constitute an additional supervision expenses after the expiration of the additional supervision period.

3. Claims of supervision fees for the Plaintiff Han-jin case

The Plaintiff Hanjin-jin also performed the fire-fighting supervision by October 31, 1997, which was the expiry date of the contract under the contract of this case, and thus, the Plaintiff shall have a claim for supervision expenses at the rate of 11,718,000 won from May 17, 1998 to 5% per annum as stipulated in the Civil Act, as sought by the Plaintiff, after the completion of supervision over the amount of KRW 19,530,000, excluding KRW 3,906,000, which was paid in advance to the Defendant.

4. Determination as to whether the plaintiffs' claim of supervision expenses is a bankruptcy claim

The defendant asserts that since the trust property does not constitute a bankruptcy claim, the claim of supervision costs of this case is not a bankruptcy claim.

A. According to the evidence Nos. 7 (Sale-type Land Trust Contract), the bankrupt may construct the instant building and conclude a trust contract for the purpose of selling the land and buildings with the intention of selling them in trust after removing the land and the building on the land of the land of the land of the land of the land of which the land of the land of the 2.8mm2 and the land of the 3m2.8m2 from the Hanpo-si, Mapo-si from the Mapo-si, the Mapo-si, Mapo-si, and Hanpo-si, the bankrupt was declared bankrupt while the lawsuit of this case is pending.

B. The trust property is completely transferred to the trustee and the trustee forms a legal relationship as the right holder in the external relationship. However, since this is a property for the beneficiary, the Trust Act has provisions such as Article 21 (Prohibition of Compulsory Execution), Article 22 (Bankruptcy and Trust Property of Trustee), and Article 25 (Independence of Trust Property), etc., and protects the trust property from the creditor of an individual trustee, separately from the personal property of the trustee.

In addition, Article 21 of the Trust Act prohibits a trustee from compulsory execution on the trust property against a trustee's individual creditor, but it is based on the premise that the trustee's obligation to a third party for the performance of trust affairs is an individual debtor in principle. However, it is unreasonable to prohibit a trustee from compulsory execution on the trust property on the ground that the trustee is an individual debtor even if the trustee bears the obligation for the performance of trust affairs, it is not a provision that limits the trustee's liability.

C. Therefore, even if the Plaintiff’s claim as a bankruptcy claim occurred in the course of performing the trust affairs, if the trustee goes bankrupt as an individual’s obligation, it constitutes a bankruptcy claim that covers the entire bankrupt’s property as a liability property.

5. Conclusion

Therefore, the 195,078,40 won and the 5% annual interest rate from May 17, 1998 to December 5, 2003, and 20% interest rate from the next day to the full payment date. This constitutes bankruptcy claims. However, the defendant raised an objection against the 303,450,400 won and the 384,592,961 won interest rate for delay as seen above. Thus, the above plaintiff's bankruptcy claim against the 195,00 won and its interest rate for the above 384,592,961 won are confirmed to have been bankruptcy claims against the 195,00 won and its interest rate are as stated in the judgment of the court of first instance. Since the above plaintiff's claim against the 195,07,400 won and its interest rate is to be revoked by the court of first instance, the plaintiff's claim against the 195,000 won and its interest rate is to be revoked by the court of first instance.

Judges Kim Hwang-sik (Presiding Judge) Lee Jae-sik