建设诉讼
[Civil Execution] Barun Law helps a purchaser of real estate, which is subject to a compulsory auction and the permission of sale, acquire complete ownership of real estate free from any encumbrances, including auction entries
1. Summary of the CaseA. Who is the party represented by Barun Law? We represented a defendant who is a corporation purchasing the disputed real estate (a unit of residential-commercial apartment at Gangnam) from a debtor. A plaintiff is the Korea Credit Guarantee Fund, which holds a number of rehabilitation claims against the debtor. B. Background of the Case The plaintiff filed a lawsuit against the defendant, who was the beneficiary, to seek compensation equivalent to the debt owed by the debtor and cancellation of the real estate sales contract, claiming that the debtor’s sale of real estate to the defendant constituted an act of fraud to avoid its debt obligation, given that the debtor sold the real estate in a situation where it owed about KRW5.1 billion beyond its assets to the plaintiff. Accepting the plaintiff’s claim, the court of first instance ruled that the real estate sales contract be canceled and the defendant pay approximately KRW1.2 billion to the plaintiff. The defendant appealed to the decision, and we represented the defendant before the appeal court. A rehabilitation plan was approved for the debtor who sold the real estate to the defendant, and in the approved rehabilitation plan, most of the debtor’s debts to the plaintiff were set to be discharged on the condition of partial repayment. C. Litigation The main issue in the appellate trial was whether the claim allegedly held by the plaintiff against the defendant could be discharged pursuant to the decision to approve the debtor's rehabilitation plan. The defendant presented a new argument that most of the plaintiff’s alleged claim had been discharged on the condition that the debtor would repay about KRW85 million, which was the amount of the outstanding rehabilitation claim discounted to the present value, pursuant to the approved rehabilitation plan. The defendant actually posted a deposit for repayment in favor of the plaintiff. Accordingly, finding the effect of the repayment deposit posted by the defendant, the court decided to recommend a settlement that the defendant pay KRW10 million to the plaintiff in addition to the already deposited amount of KRW85 million. Both the plaintiff and the defendant accepted the court’s settlement recommendation. As a result, the case ultimately ended with the defendant paying KRW95 million to the plaintiff. The defendant who had been ordered to pay approximately KRW1.2 billion to the plaintiff in the first trial was able to conclude the case in the appellate trial by paying only about KRW95 million. 2. Our Argument and RoleIn the appeal trial, we argued that most of the rights to be preserved, which were rehabilitation claims, should be discharged on the condition of partial repayment in accordance with the decision to approve the rehabilitation plan. Then, the plaintiff argued that since the rehabilitation plan stated that the amount of claims subject to exemption would be exempted for each creditor on the day after the date on which cash repayment under the rehabilitation plan has been completed, the exemption does not take effect only through partial repayment. In order to fundamentally remove room for controversy, we posted a deposit for repayment after discounting the amount of the outstanding rehabilitation claims to the present value as stated in the rehabilitation plan. Then, the plaintiff argued that since the provision for repayment should be made in accordance with the designations of the rehabilitation creditors under the rehabilitation plan, the defendant was not allowed to designate and redeem the preserved claims only, which were a part of the rehabilitation claims, and was required to redeem all rehabilitation claims in addition to the preserved claims. In response to the plaintiff’s argument, we emphasized that the order of repayment provision in the rehabilitation plan applies only to the debtor and does not apply to cases where the defendant, an interested third party, makes repayment. We also emphasized that an interested third party may designate a debt to be repaid according to the legal principle of designated appropriation under the Civil Act, and that even according to Japanese precedent, where an interested third party’s interest is violated by a special clause prohibiting repayment by the third party, it may constitute an abuse of rights. Finally, the judge made a decision in which he recommends reconciliation in agreement with our arguments, and the plaintiff accepted it. 3. Significance of the JudgementAlthough no ruling was made in the above case, with regard to an issue as to whether an interested third party’s repayment right can be restricted through the order of repayment appropriation established in a rehabilitation plan, a meaningful conclusion could be drawn that it is not possible to limit the third party’s repayment right. Previously, the Seoul High Court ruled that even a third party with an interest can only repay a debt against the will of the debtor, and the repayment becomes effective when the payment is performed in accordance with the contents of the debt, and that the repayment order applies to cases where a third party makes repayment as a condition or an obligation subordinate to the repayment of the debt by agreement between the creditor and the debtor. The order of repayment agreed between a creditor and a debtor has been given priority over an interested third party’s repayment right. Seoul High Court Decision 2016Na2065894, dated August 24, 2017. However, in this case, the court decided that an interested third party’s repayment right was an independent right that could not be limited by an agreement between the creditor and the debtor, so the decision was somewhat different from the above ruling. In other words, the decision is intended that the right to repayment of a third party with an interest as a person with a legal interest who is entitled to the protection of subrogation by the payment of the claim to be preserved cannot be arbitrarily limited by an agreement made between the creditor and the debtor. This decision is significant in that, unlike existing lower court precedents, it gives priority to the repayment rights of interested third parties over the established legal relationship between creditors and debtors. □ Attorneys in charge: Ko Il-kwang, Kim Yong-woo and Kwak Hee-jae
2024. 06. 28
建设诉讼
[Civil Execution] Barun Law helps a purchaser of real estate, which is subject to a compulsory auction and the permission of sale, acquire complete ownership of real estate free from any encumbrances, including auction entries
1. Overview of the CaseOn October 1, 2018, the application for compulsory real estate auction was entered for some of the shares in the disputed real estate (the “Real Estate”). On December 15, 2020, the registration for compulsory real estate auction was entered for some of the other shares. With the above two compulsory auction registration entries, one other real estate discretionary auction registration entry, and various attachment registrations being established for the Real Estate, our client purchased the Real Estate on May 30, 2022 on the condition that the seller would cancel all encumbrances, including security interest, attached to the Real Estate with the interim payment to be made by the client to the seller for the Real Estate. The seller, while suspending compulsory execution through a decision to suspend compulsory execution, filed a lawsuit against the creditors who applied for compulsory real estate auctions, and partially won the lawsuit at the court of first instance. (Execution procedures for some shares were suspended in the situation where a decision to permit the sale had been finally confirmed.) However, the seller lost the case at appeal, and the Supreme Court of Korea dismissed the seller’s appeal without deliberation on October 27, 2022. It was conclusively entered that the seller lost the case. Due to the dismissal of the appeal, the suspension of compulsory execution was lifted, and accordingly, the auction procedure was proceeded with. The client’s acquisition of ownership of part of the Real Estate became imminent. Despite the client’s repeated request, however, the seller kept demanding the client to make all the balance payment and refused to make a deposit and file a lawsuit to preserve its right against execution of the real estate compulsory execution procedures. 2. Our roleOur attorneys in charge of the case first made a deposit for redemption of the claim underlying the two compulsory auction procedures for the client who was the purchaser wishing to secure a complete ownership of the Real Estate by canceling the real estate compulsory auction entries made against the Real Estate. Then, on behalf of the seller, they filed a lawsuit to appeal the claim made by the creditors who had applied for the compulsory auctions, on the basis of the discharge of debt by the redemption deposit. At the same time, they obtained and submitted a decision to suspend the compulsory execution to the relevant execution court, which eventually prevented a purchaser from acquiring ownership of part of the Real Estate through a compulsory auction. In the lawsuit filed to appeal the claim made by the creditors, the defendants argued that some costs were omitted in the compulsory auction costs. Against this argument, our attorneys collected the deposit, and made a deposit again by adding the allegedly omitted costs to the deposit for the client. The creditors withdrew their applications for a compulsory auction after receiving the increased deposit. The real estate compulsory execution entries were canceled upon the request made by the execution court on the basis of the creditors’ withdrawal. Meanwhile, as the real estate compulsory execution entries were normally canceled, our attorneys who achieved the goal of the lawsuit withdrew the appeal on behalf of the client. The defendants who were creditors who had filed for compulsory execution agreed with the withdrawal, but the seller who participated in the appeal as an independent party or supplementary participant filed an appeal to the withdrawal, arguing that the sale and purchase agreement with the client had been canceled by refusal to perform the agreement. The judge who first proceeded with the appeal declared that the lawsuit was closed by the defendant’s agreement to our attorneys’ withdrawal. The judge who later proceeded with the case confirmed that the creditors’ claim against the seller under their claim for execution was extinguished by the redemption deposit, and issued a decision to recommend conciliation to the effect that the creditors would not file any application for compulsory execution on the basis of their right to execution. All the three parties made no appeal against the decision, and the case was closed by recommendation of conciliation. 3. Significance of the CaseEven though the creditor who applied for the compulsory real estate auction received full payment of the claim amount from the debtor and submitted a withdrawal of auction application, after the purchase report is made, the withdrawal has no effect without the consent of the person reporting the purchase of real estate at the highest price or the purchaser (pursuant to Article 93.2 of the Civil Execution Act). In the case of a compulsory auction of real estate, when the debtor files a lawsuit to object to the compulsory auction claim (in accordance with Article 44 of the Civil Execution Act), receives a decision to suspend execution from the court on the merits, and then receives a favorable judgment on the merits and sends the original copy of the judgment to the execution court as a cancellation document pursuant to Article 49(1) of the Civil Execution Act, the auction procedure will be canceled even without the above consent. (In the case of a voluntary auction, the auction cancellation method varies depending on whether the creditor applying for the auction who is repaid the full amount of the secured debt cancels its interest in collateral (i.e., keun-mortgage) underlying the auction application.) The key issue is how the buyer of the real estate should respond if the execution debtor, like the seller in this case, does not file an appeal or a lawsuit for redemption deposit. On the basis of the general legal principle that a creditor can subrogate a debtor to file a suit for performance or confirmation related to the right to be subrogated, as well as a suit for objection to a third party or objection to claim, our attorneys made arguments based on lower courts’ precedents to the effect that the purchaser has the right to claim a transfer of complete ownership of the property free from encumbrances and that the need for preservation can be granted where the client as purchaser seeks exclusion of execution power on behalf of the seller as execution debtor. They were able to overcome the seller’s refusal to cooperate and helped the purchaser to acquire complete ownership. For this reason, this case can be said to have great practical significance. □ Attorneys in charge: Son Heung-soo and Yoo Jeong-min
2024. 06. 28
国际交易/投资
[Corporate] Barun Law advises YoungToys Inc. on establishing a joint venture in China
Barun Law (attorneys Oh Hi-joung, Choi Jae-woong, Cho Seo-jin and Lee Hye-jun) successfully advised YoungToys Inc. on establishing a joint venture with a Chinese manufacturer, Rongchuang (Guangzhou) Children’s Cultural Industry Co., Ltd. Barun Law provided legal advice on the overall matters of establishment of a joint venture, including negotiation of joint venture terms and conditions, and drafting, execution and review of a memorandum of understanding (in Korean and Chinese), a joint venture agreement (in English) and the articles of incorporation of the joint venture (in Chinese). Based on this advisory effort, we proceeded with the establishment of a joint venture and provided the client with advice to ensure that the client's interests were fully reflected under the local regulatory environment. In particular, in this case, the client had a plan to provide a license essentially required for the joint venture and to invest the largest amount to establish the joint venture in Dalian, China with the Chinese corporation, the joint investor, appointing a representative and taking responsibility for operation of the joint venture. Accordingly, we preemptively reviewed sensitive issues such as future business performance and financial settlement to discuss and respond to potential issues with the counterparty in advance, and advised the client on establishing an internal control system to ensure that the client's authority could be effectively guaranteed in the future. In addition, we cooperated closely with local law firms, and actively explained and persuaded local competent authorities on discrepancies with the local standard articles of incorporation, which were caused by special joint venture conditions, so that the original articles of incorporation could be passed as initially planned. As a result, the Chinese joint venture was established as of June 11, 2024 and is currently scheduled to begin doing business. □ Attorneys in charge: Oh Hi-joung, Choi Jae-woong, Cho Seo-jin and Lee Hye-jun
2024. 06. 28
IP咨询和诉讼
[Intellectual Property] Barun Law helps a victim obtain a Supreme Court Decision to quash and remand the case by demonstrating the existence of an unfair purpose against defendants who were alleged of unauthorized acquisition, use or disclosure of trade secrets
1. Overview of the CaseWhile working at the victim company, Mr. A took a photo of the raw material measurement and manufacturing instructions containing the manufacturing method in this case, which is a trade secret of the victim company, with his cell phone. Afterwards, he transferred to B ("Company B") and conducted research and development tasks using the manufacturing method at Company B under the instructions of the head of the research center, Mr. C. Alleging that Mr. A used and leaked the victim company’s trade secrets to Mr. C for the purpose of obtaining unfair profits or causing damage to the victim company (hereinafter referred to as "unfair purpose") and that Mr. C acquired and used the victim company’s trade secrets for the unfair purpose, the prosecution indicted Mr. A, Company B and Mr. C on charges of violating the Unfair Competition Prevention and Trade Secret Protection Act "Unfair Competition Prevention Act"). Company B was indicted on the basis of joint penal provisions. The court of first instance declared a guilty verdict against all the defendants (Cheonan Branch of Daejeon District Court Decision 2018Godan1267, dated November 14, 2019). However, the appellate court ruled that all of Mr. A, Company B and Mr. C were found not guilty, citing freedom to find a new employer (Daejeon District Court Decision 2019No3554, dated October 19, 2022, hereinafter referred to as "original judgment"). The prosecution appealed the decision. 2. Court JudgmentThe Supreme Court issued a judgment quashing and remanding the original judgment on May 30, 2024. Specifically, the Supreme Court ruled that, taking into account the occupation and career of Mr. A and Mr. C, the motive and circumstances of their actions, and the relationship between the victim company, which is the holder of the manufacturing method, and Mr. A and Mr. C, who acquired the manufacturing method, although there is an ample room to see that Mr. A used and leaked the manufacturing method to Mr. C for an unfair purpose and there is an ample room to see that Mr. C acquired and used the manufacturing method for the unfair purpose, the lower court made a wrong decision by misunderstanding the legal principle of intentional or fraudulent use to obtain profits or inflict damage to a holder of trade secrets under Article 18 of the Unfair Competition Prevention Act and failing to fully conduct necessary deliberation (Supreme Court of Korea Decision 2022Do14320, dated May 30, 2024). 3. Our role and argumentRepresenting the victim company, we focused our efforts on supporting the prosecution and uncovering the illegality of the original judgment. Even though the freedom to find a new employer must be guaranteed, it is clear that trade secrets secretly acquired from a previous job should not be used without permission after moving to another employer. This case is not a case that takes issue with Mr. A's transfer to another employer itself, but a case that takes issue with the reckless use of trade secrets after the transfer. We proved that the essence of this case is that Mr. A and Mr. C attempted to get a free ride on the extensive efforts made by the victim company to develop and manage trade secrets, and that it was clearly supported by evidence that Mr. A and Mr. C had the unfair purpose. □ Attorneys in charge: Han Tae-young and Jung Young-hun
2024. 06. 28
重建·再开发
[Construction/Real Estate] Representing an urban development association, Barun Law wins the lawsuit filed by the members of the association to seek invalidation confirmation of the approval of a replotting plan for an urban development project on land sized more than 900,000㎡
1. Background of the caseThe defendant is an association established for the purpose of carrying out an urban development project implemented through land replotting. The plaintiffs are owners of land within the above project zone and members of the association. The defendant held an extraordinary general meeting on November 29, 2019 and approved the preparation of a replotting plan, filing an application for approval of the replotting plan, and sale of land secured by the authorities in recompense of development outlay. The defendant received approval for the replotting plan from the mayor in accordance with the resolution of the extraordinary general meeting of this case on December 27, 2019. Accordingly, on January 15, 2020, the defendant announced the first replotting land designation disposition for the project area in this case according to the replotting plan (the "first disposition"). The defendant also held a meeting of delegates on May 16, 2022 and resolved to designate the project area in this case as a scheduled replotting site with the same contents as the first disposition. On June 7, 2022, the defendant re-announced the second replotting scheduled land designation for the project area in this case (the "second disposition"). Claiming that the resolution of the extraordinary general meeting, the replotting plan, the approval disposition, and the first and the second dispositions were all illegal, the plaintiffs filed a lawsuit against the defendant in order to seek (i) confirmation of invalidity of the resolution of the extraordinary general meeting, (ii) invalidity confirmation or cancellation of the first disposition, and (iii) confirmation of the invalidity of the second disposition. 2. Our argument and roleSince the defendant’s second disposition was substantially the same as the first disposition, to the extent that the second disposition newly took effect, whether it would be sufficient to contest the second disposition and whether there was no legal interest in contesting the first disposition, which had already become a past legal relationship, were issues in this case. In addition, the issue of whether there were grounds for invalidity in the second disposition, which was resolved through the meeting of delegates, also became an issue. Representing the association, we compared the details of the first and second dispositions of scheduled replotting land designation and found that the second disposition was substantially the same as the first disposition. On the basis of the finding, we emphasized that there was no legal benefit in seeking invalidation or cancellation of the first disposition. In addition, we argued that there was no reason for invalidity because the second designation had been resolved through the meeting of delegates on May 16, 2022, which was convened in accordance with legal procedures and met the quorum on the basis of the finding that the plaintiffs failed to file a suit for cancellation within 90 days from the date they had learned of the second disposition, and the plaintiffs were allowed to claim invalidity only due to the lapse of the prescribed period. Meanwhile, the plaintiffs argued that even if the second disposition and the first disposition had substantially the same contents, they had a legal interest in seeking invalidation confirmation or cancellation of the first disposition in order to later hold the defendant liable for unfair enrichment or illegal acts. In response to this argument, we argued that the benefit claimed by the plaintiffs was not a “direct benefit” to seek invalidation confirmation or cancellation of the first disposition, but only an “indirect benefit” for filing a lawsuit for unfair enrichment or illegal acts against the defendant, so the lawsuit still did not have any merits. Furthermore, the plaintiffs argued that the replotting plan, which was the basis for the first and the second dispositions, violated the plaintiffs’ property rights by applying an excessive reduction rate and was illegal by violating the principle of equality between the plaintiffs and the other members of the association. However, submitting the appraisal report evaluating the project site in this case at the time, we emphasized that the calculation of the reduction rate for the land owned by the plaintiffs could not be considered particularly illegal or disadvantageous and contrary to the principle of equality. 3. DecisionBased on our argument, the court determined that it considered the first and the second dispositions substantially the same disposition and there is no benefit for the plaintiffs in seeking invalidity confirmation or cancellation of the first disposition, the benefit of the lawsuit regarding the first disposition, which the plaintiffs claimed to later seek unfair enrichment or tort liability against the defendant, was only an indirect benefit., and the preliminary issues for civil litigation could not be considered to be included in the benefit of suit in a lawsuit filed for allegedly illegal dispositions. The court finally dismissed the plaintiffs' appeal. In addition, with regard to the plaintiffs' claim that the defendant’s meeting of delegates was illegal due to insufficient number of delegates or violation of procedures, the court dismissed their claim on the basis of the following determination: the meeting of delegates at issue in this case is legal and valid as found from the list of delegates, the notice of the meeting and the approval of expenses for mail dispatch, which are produced by us to the court. 4. Significance of the decisionThis case sets a meaningful precedent by ruling specifically on the fairness of appraisals and replotting plans, which frequently become an issue in urban development projects carried out through the evaluation oriented replotting method, and the effect of a resolution of extraordinary general meetings and delegate meetings for designating land scheduled for replotting. The legal principle upheld by the Supreme Court that there is no legal interest in seeking invalidity confirmation is once again affirmed, if an administrative agency makes the same administrative disposition in accordance with the due procedure or formality with regard to an administrative disposition that is invalid due to procedural or formal defects, since the claim for invalidity confirmation for the previously invalid administrative disposition is nothing more than a dispute over the validity of the past legal relationship, although there are some differences in the content of the first and the second dispositions, as they are all based on the same replotting plan and the changes do not affect the rights of members of the association. The project was a large-scale one to supply a new city sized more than 900,000 square meters, with a completion rate exceeding about 97%, and was involved by hundreds of members of the association, landowners, and prospective tenants. The decision in this case is also significant in that the project was able to be completed without a hitch. □ Attorneys in charge: Suk Ho-chul, Kim Yong-woo and Park Min-chae
2024. 05. 30
企业刑事
[Labor/Criminal] Barun Law successfully defends the client in a case of the forced withdrawal of union membership by minimizing the scope of prosecution and preventing a request for warrant issuance
1. Overview of the case A company ("Company A") and 37 executives and employees thereof were booked as suspects and investigated by the prosecution for violating the Trade Union and Labor Relations Adjustment Act on charges of encouraging 583 union members belonging to the Korean Confederation of Trade Unions to withdraw their membership and giving them personnel disadvantages for the reason that they belonged to the Korean Confederation of Trade Unions. After we successfully advised the dismissal of the arrest warrant for the executive director and managing director of Company A, Company A requested us to give additional advice and defense services for all of its executives and employees, including the representative director, against the prosecution’s request for issuance of arrest warrants filed with the court. 2. Our role and argumentWe formed a team led by the head of the Financial and Economic Crime Response Team who was a former prosecutor well versed in corporate crime. We advised Company A on how to expeditiously complete the investigation process while minimizing damage to the company, including the direction of the prosecution’s investigation, major decision-making methods, and methods of receiving the investigation. In addition, we argued several times to the prosecution's investigators that in order for the company to be able to conduct normal business activities, only those with serious responsibility should be prosecuted, the scope of trial should be minimized and the current representative director should not be booked as he is unrelated to the charged criminal facts, since the complaint was canceled, the statutory penalty is less than 2 years, it is a crime not punished in other countries, and all involved people have admitted to the alleged crime,. As for the executive director and the managing director, whose warrants were dismissed, we pleaded for them that the prosecution should respect the court’s judgment and hold a trial against them without detention since they admitted to all their alleged crimes, were faithfully participating in the investigation, and there were no special changes in circumstances. 3. Our advice and the result of our defenseBased on our advice and defense, the trial of Company A's executive director and managing director was held without detention and a request for issuance of warrants against them was not made. Among the executives and employees who were booked as suspects or summoned by the prosecution, 27 people, including the current representative director, received suspended indictment or were not booked. Retaining us who have outstanding capabilities in the labor and criminal matters, Company A was able to avoid the risk of having numerous executives and employees going to trial, and thus minimize disruption to corporate activities. □ Attorneys in charge: Cho Jae-bin, Lee Chang-min, Jeong Eun-ha and Kang Min-jae
2024. 05. 30