Law Firm Cho & Lee, Counsel for the defendant-appellant

Attorney Kim Hn-soo, Counsel for the loan

Law Firm Barun (LLC)

[Defendant-Appellant]

2. The costs of appeal shall be borne by the Defendant.

The defendant shall pay to the plaintiff 830,000,000 won with 15% interest per annum from the day after the delivery of a copy of the complaint of this case to the day of complete payment.

2. Purport of appeal

The part against the defendant in the judgment of the first instance is revoked, and the corresponding plaintiff's claim is dismissed.

The reasoning of this Court concerning this case is as follows, with the exception that part of the reasoning of the first instance judgment is dismissed as follows (the main sentence of Article 420 of the Civil Procedure Act). [Attachment]

Of the reasoning of the judgment of the court of first instance, 2nd to 6th 12th 12th 2th 2th 6th 2th 6th 6th 2th 2th 2th 2th 2th 2th 2th 2th 2th 3th 6th 6th 6th 2th 200 as follows: "1th 2nd 1st 1st 2nd 3th 3th 2nd 3th 3th 3th 6th 6th 6th 6th 2nd 2nd 1st 3th 202nd 1st 1st 1st 3th 1st 2002nd 1st 1st 3th 1st 202nd 2nd 2nd 1st 2002nd 2nd 1st 206th 2nd 206th 2nd 1st 2014.

제3조 (C의 용역업무 세부내용)C는 이 사건 1차 용역대상 부동산을 총 매입 예정금액 금 육백사십억 원(特64,000,000,000원) 이내로 매입하여야 하며, 다음과 같은 조건으로 용역수행(매매계약 체결)하여야 한다.1. C는 이 사건 1차 용역대상 부동산(100%)의 면적기준 90%에 해당하는 매매계약서를2014. 2. 15.까지 체결하여 동 기한까지 그 원본을 D에 제출키로 함. 단 C는 90%에해당하는 매매계약서 중 금 일십삼억팔천일백만 원(₩1,381,000,000원)의 금액 범위내에서 매매계약서 체결일로부터 3영업일 이내에 계약금 10%를 지급하는 조건으로매매계약서를 체결할 수 있기로 함. D과 C는 사업일정을 고려하여 상호 합의로 1회에 한하여 15일 연장할 수 있기로 함2. 전 1항 면적 기준 90%에 대한 매매계약서상 계약금 지급일자는 일괄로 “2014. 3.31. 이내로 계약하여야 하며, 잔금 지급일은 “2014. 12. 31. 이내 또는 PF 대출 실행 후 1주일 이내로 특정하기로 함3. C는 전1항, 전2항의 용역을 완수하는 것을 조건으로 용역대상 부동산의 5% 범위 내에서 계약금 10%를 지급함과 동시 매매계약을 체결할 수 있기로 함(매매계약 체결과동시 계약금 이행, 잔금은 전2항과 동일)4. ~ 7. (생략)제5조 (용역대금 및 지급일자)1. 전 3조 세부용역 업무를 완수하는 것을 조건으로 피고는 C에 금 사십오억 원(\4,500,000,000원, 부가세 별도)의 용역대금을 지급키로 하되, 이 사건 1차 용역대상 부동산에 대한 C의 매매계약금액이 총 매입예정금액 금 육백사십억 원(\64,000,000,000원)을 초과하는 경우 그 초과금액(총 매매계약금액 - 640억원)은용역대금에서 공제하고, 총 매매계약금액이 총 매입예정금액 미만일 경우 그 차액은C의 성공보수로 용역비 잔금 지급 시 추가 지급키로 함2. 전 1항의 용역대금 중 20%(금 9억 원 \900,000,000원, 부가세 별도)는 C가 전 제3조 제1항을 이행(토지 면적 기준 90% 매매계약서 작성·제출)하는 경우 그 이행일로부터 7일 이내에 지급하며, 용역대금 50%는 C가 토지 면적기준 95%에 대한 매매계약서를 체결, 제출하는 것을 조건으로 피고의 지역주택조합설립허가 신청일로부터 30일

3. The remaining 30% of the service charges shall be the payment key (hereinafter omitted) within seven days from the date the Defendant’s PF loan is executed if C concludes a sales contract for 100% of the land area and completes the service.

2) On August 5, 2014, C, the Defendant, and D entered into a service contract (from the next, "the second service contract of this case" and "the second service contract of this case" collectively referred to as "each service contract of this case") with respect to each real estate listed in the separate list of the project sites of this case, which was entered into by C in the separate list of the project sites of this case, with respect to the duties of entering into a purchase and sale contract with the purchaser as the Defendant. The main contents of the second service contract of this case are as follows.

The reasoning of the judgment of the first instance is as follows: (a) C, the Defendant, and D, of the following additional terms: (b) on October 28, 2014, agreed to enter into a sale contract for down payment (10% of the purchase price) under Article 1(3) of the 2nd service contract of the instant case by October 30, 2014 and to change the terms and conditions for submitting the original copy of the contract to the Defendant and D until October 30, 2014 to “C to complete the services for land sale (the Defendant’s) so that it satisfies the requirements for the PF lending by November 201, 28.”

Of the reasoning of the judgment of the first instance, 4 to 15 pages 14-15: No dispute over the whole amount (based on recognition) as follows; Gap evidence Nos. 1, 2, 9, 14-16, 52, 53, and 55 (including serial numbers; hereinafter the same shall apply), Eul evidence Nos. 1; Eul evidence Nos. 1; hereinafter the purport of the whole pleadings and arguments; 5-10 of the grounds of the judgment of the first instance; 4,650,061,819 [the total amount of unpaid claims] of KRW 1,386,211,819 [the grounds for recognition] of the service payment under the first service contract of this case; 1,2,90 won [the amount equivalent to KRW 2,07,00,00 x 1,000 x 21,8181, 205 won [the amount equivalent to the service payment of KRW 300, 30181,20500];

In the reasoning of the judgment of the court of first instance, 5 pages 14 and 7 pages 18: "4,55,280,061,819, in part, for each of the following reasons:

【6. 3 to 7. Of the grounds of the judgment of the first instance: The summary of the Defendant’s assertion as follows:

By December 2014, the Defendant received a PE loan from the owner of the land in the instant project site and paid the balance of the purchase price to the owner of the land in the instant project site. In order to obtain a PE loan, the sales contract was necessary on real estate equivalent to at least 95% based on the total size of the real estate subject to the instant 1 and 2 services. Therefore, C’s duties to be performed under each service contract of this case are to be concluded on the land located in the instant project site in compliance with the terms and conditions stipulated in each service contract so that the Defendant would be able to obtain the Defendant’s PE loan. However, C did not conclude the sales contract on the entire real estate subject to the instant 1 and 2 until the due date stipulated in each service contract of this case, and did not comply with the detailed conditions stipulated in each service contract of this case and did not receive the remainder payment from the owner of each of the instant land by December 2014, and the Defendant did not receive any remainder payment from the owner of each of the instant land. As a result, the Defendant did not receive any remainder payment from the Plaintiff.

2) Determination

In full view of the evidence mentioned above, Gap evidence and evidence Nos. 17, 20, 22, 45, 54, 56, 56, and Eul evidence Nos. 17, and Eul evidence Nos. 2 and the purport of the whole pleadings, the following circumstances revealed are acknowledged. Although it is recognized that Eul had allowed the defendant to conclude a sales contract with regard to part of the real estate subject to the service of this case Nos. 1 and 2, or to conclude a sales contract that is somewhat different from the terms stipulated in each service contract of this case, it is determined that such circumstance does not interfere with the recognition that the performance of service as defined in each service contract of this case has been completed. Accordingly, the prior defendant's assertion on a different premise cannot be accepted.

A) The sales contract for part of the instant real estate subject to the instant primary service was concluded after the lapse of the period stipulated in the instant first service contract ( February 15, 2014) (However, with respect to each real estate stated in the attached Table 1 Nos. 1, 5, and 19 among the real estate for which the Defendant asserted that the period stipulated in the instant first service contract was concluded after the lapse of the period stipulated in the instant first service contract, the sales contract was concluded between C and land owners before the instant first service contract was concluded. However, Article 7(3) of the instant first service contract provides that the instant first service contract is deemed to be the service contract executed by C even in the case of the real estate for which the sales contract was concluded before the instant first service contract was concluded. Accordingly, it cannot be deemed that the sales contract was concluded after the expiration of the period stipulated in the instant first service contract.

However, the instant first service contract does not include a provision that, if C exceeds the time limit for the conclusion of the sales contract, the Defendant does not entirely bear the obligation to pay the service price, and does not include a provision that, with respect to the instant PE loan emphasized by the Defendant, C bears any obligation. Furthermore, the Defendant intended to obtain the instant PE loan by the end of December 2014. However, since the date the sales contract was concluded last on October 29, 2014, the instant PE loan was “the date on which the sales contract was concluded” and it is difficult to deem that the conclusion of the sales contract was delayed to the extent that would interfere with the Defendant’s PE loan. Furthermore, there is no evidence to acknowledge that the Defendant did not urge C to perform the instant first service contract or hold the Defendant liable for nonperformance after the time limit for the conclusion of the sales contract stipulated in the instant 1 service contract, the Defendant did not conclude the instant 15th service contract after the conclusion of the first service contract with C and the instant 2th service contract after the conclusion of the instant 15th service contract.

On the other hand, by November 18, 2014, C concluded a sales contract on seven parcels of the instant secondary real estate, among the instant secondary real estate, and exercised the right to demand sale on behalf of the Defendant (241m in total as each real estate listed in the table Nos. 4 and 5 of the attached Table Nos. 2) (=2.69% in proportion to each real estate listed in the table Nos. 4 and 5 of the attached Table Nos. 2 in the total project site) (=2.69% in proportion to each real estate listed in the table Nos. 4 and 5 of the attached Table No. 2 in the total project site). Thus, it is deemed that the requirements for the right to demand sale under Article 18-2(1)1 of the former Housing Act (amended by Act No. 14344, Dec. 2, 2016) were satisfied.

However, Article 1(5) of the 2nd service contract provides that "If the C has completed a sales contract for at least 95% of the total purchase area of the private land in the instant case, the services may be completed in the form of exercising the right to demand sale under the name of the Defendant on behalf of the 5% on condition that the Defendant would not interfere with the Defendant's PF loans." Therefore, the right to demand sale of each real estate mentioned in the 4th and 5th attached table was exercised, and the sales contract was not prepared and the purchase price cannot be known (the sale price shall be the market price at the time when the right to demand sale was exercised, and the equivalent price shall be the market price at the time when the right to demand sale was exercised) cannot be deemed to have not been completed. In addition, in the 2nd service contract of this case, the 3nd service contract of this case set the time limit for concluding the 2nd service contract of this case as " October 30, 2014." However, the Defendant's argument that C and D did not comply with the 28th service contract of this case.

B) The terms and conditions of the instant sales contract concerning each of the instant 1 and 2 services premises are inconsistent with those stipulated in each of the instant sales contracts. However, in determining whether a financial institution will implement a new construction project of a multi-family housing, an important factor considered in relation to the site of the project is the level of securing the project implementer’s project site. In other words, it is subject to the main examination of which the Defendant already acquired ownership in the instant project site or completed a sales contract at least, and the detailed conditions stipulated in each of the instant sales contracts, such as the date of payment of down payment, are not important. However, as seen earlier, C did not appear to have been aware that the terms and conditions of the instant 1 and 2 services premises were either rescinded prior to the implementation of the Defendant’s PF loan, or that the Defendant did not have any error with the terms and conditions stipulated in each of the instant sales contracts on the grounds that each of the instant 1 and 2 services premises did not have any influence on the Defendant’s execution of a new construction project. On the other hand, it is difficult to deem that the Defendant did not have been subject to a certain credit assessment of each of each of the instant services premises.

C) On November 30, 2015, the Defendant and D made up 100% of the sales contract (100%) on October 29, 2014 and completed the service work by submitting 52 items (100%) to the Defendant and D with respect to the real estate subject to the instant primary service. (2) The Defendant and D concluded a sales contract on seven parcels among the real estate subject to the instant secondary service, and completed 100% of the service area, excluding 2 parcels of the non-contract area. The Defendant and D confirmed that C did not bear any liability for the cancellation of the sales contract or the forfeiture of down payment which was already concluded within the instant project site, as well as for the payment of service costs following the completion of the service work (hereinafter referred to as “instant agreement”). This constitutes an agreement to support the payment of each of the Defendant’s indirect service charges (i.e., the payment of each of the instant service charges) after the completion of each service contract.

On the other hand, paragraphs (5) and (6) of the agreement of this case provide for the continuous performance of services by C. However, even according to the language and text of paragraphs (5) and (6) of the agreement of this case, C is nothing more than the pursuit of a sales contract for the real estate, the sales contract of which was rescinded on the ground of the Defendant and D’s unpaid purchase price, among the project sites of this case, in order to be paid the service costs under each service contract of this case. Furthermore, only the agreement of this case and paragraphs (5) and (6) of the agreement of this case, it is difficult to readily conclude that C agreed to receive the service costs under each service contract of this case only where it was acknowledged that the service duties under each service contract of this case have not yet been performed, or where the sales contract was concluded again on the real estate, it is difficult to conclude that C

D) On April 26, 2018, the land purchase service agreement (from the next to the third service agreement of this case) drafted on April 26, 2018 by C and the Defendant as the party concerned entered C in the area of land where C performed the service on October 1, 2017 to March 30, 2018. However, on the trust site of this case, the trust company of this case asserts that the Defendant’s seal on the third service agreement of this case was invalid without the consent of the contractor and the financial institution, and the Defendant voluntarily sent to C an official document that denies the validity of the agreement in accordance with the preparation of the third service agreement of this case. Considering these circumstances, it is difficult to conclude that the evidence submitted alone becomes invalid by preparing the third service agreement of this case, and the content of each service agreement of this case’s new service agreement of this case between C and the Defendant does not fall under the establishment of each of the third service contracts of this case.

Of the reasoning of the judgment of the court of first instance, 8 pages 1 to 10: All appeals are made as follows:

1) Summary of the defendant's assertion

A) On February 5, 2016, the Defendant: (a) set the interest rate of KRW 100,00,000 annually as 24%; (b) set the interest rate of KRW 240,00,000 on June 30 as 2% per annum; and (c) set the interest rate of KRW 11,16 as 6% per annum; and (d) lent KRW 269,00,000 per annum as of June 28, 2019; and (e) as of June 28, 2019, the Defendant paid KRW 924,408,492 in total. In addition, the Defendant paid KRW 1,557,00,000 on behalf of Company C for expenses for cancellation of the registration of the establishment of mortgage, the registration of the attachment entry, etc.; and accordingly, acquired the indemnity amount equivalent thereto. The Defendant shall set off the claim for reimbursement against each of the instant service claims based on the instant service contract.

B) The Defendant agreed to deduct KRW 200,000 from the service price under each service contract between C and H in relation to the sales contract concluded between C and the Defendant and H [20,000,000 for licensed real estate agents to be paid to licensed real estate agents’ office]. Therefore, from the service price under each service contract of this case, KRW 200,000 shall be deducted.

2) Determination

A) As to the defenses set-off against loans claims automatically:

- On 8th 19th 19th 19th 1st 1st 1st 1st 1st 1st 1st 1st 1st 1st 1st 1st 1st 1st 1st 1st 1st 2

(4) Of the reasoning of the judgment of the court of first instance, the Defendant’s defense of offsetting the claim for reimbursement amounting to the automatic claim as follows was asserted in the relevant civil procedure. In light of the contents of the Defendant’s defense of offsetting the claim for reimbursement amounting to the automatic claim, the specific content of the Defendant’s defense of offsetting this part is understood to offset the Defendant’s claim for reimbursement amounting to C, which was acquired based on the premise that the Defendant subrogated repayment of KRW 39,75,568,189 on April 6, 2018, KRW 1,530,132,69, KRW 69, KRW 39,75,520, KRW 1,569, KRW 1,569,88,189, KRW 189, and KRW 39,569,000, KRW 1050,000, KRW 1050,000 on behalf of the Defendant for the registration of creation of a mortgage (hereinafter “instant”).

However, according to the purport of Gap evidence Nos. 9 and Eul evidence Nos. 6 and the whole purport of the pleadings, Eul filed related civil lawsuits on July 10, 2018 and it is recognized that Eul set off his service payment claim and the defendant's claim for the reimbursement of this case by the delivery of a copy of the complaint. Thus, since the claim for reimbursement of this case has already been extinguished, the prior defendant's defense of set-off on a different premise is without merit.

C) On the grounds delineated below, the defendant's defense of mutual aid cannot be accepted.

(1) According to the statement in Eul evidence No. 2, Article 3(2) of the instant third service contract provides that "C shall pay 200,000,000 won out of the total service price of 4,136,00,000,000 won to the third land service company (licensed real estate agents, etc.)." However, as the above determination was made, there is insufficient evidence to acknowledge that a new agreement on the payment of service price between the defendant and C is valid as a result of the preparation of the instant third service contract. Even if otherwise, Article 3(2) of the instant third service contract provides that "A is obligated to pay 200,000,000 won out of the service price received from the defendant to the licensed real estate agent, etc. on behalf of the defendant, and it does not necessarily mean that Article 3(2) of the instant third service contract provides that the amount equivalent to the expenses of licensed real estate agents shall be deducted from the service price to be paid to the defendant C as a matter of course.

(2) According to the statement in Gap evidence 30, Jun. 5, 2018, since Eul should pay approximately KRW 200,000,00 of the licensed real estate agent's expense for certain land under the present circumstances, it is recognized that the defendant can be treated efficiently, and that it will be deducted from the amount determined at the special general meeting to be held later, and that consent and confirmation is given. C is effective only if the service price has been received without any change, only if the service price has been received without any change, the confirmation shall take effect." However, unless there is any evidence supporting that the conditions for the validity of the agreement upon the preparation of the confirmation in this case (the receipt of the service price without any change) have been fulfilled, the defendant cannot assert that the service price has been deducted from the service price to be paid to the plaintiff as a whole creditor based on the confirmation in this case.

(3) The written evidence No. 15 alone is insufficient to recognize that agreement between C and the Defendant was concluded with respect to deducting KRW 200,000,000 from the service cost under each of the instant service contracts, as alleged by the Defendant, from the service cost under each of the instant service contracts, and no evidence exists to acknowledge the mutual aid agreement as alleged by the Defendant.

2. Conclusion

The plaintiff's claim is reasonable within the extent recognized earlier, and the remainder of the claim shall be dismissed as it is without merit. The judgment of the court of first instance is justifiable with this conclusion. Therefore, the defendant's appeal is dismissed as it is without merit.

Judges Park Jong-young

Judge Cho Jong-sung

In light of the assertion, the defendant shall make the claim for indemnity in relation to the expenses of licensed real estate agents of KRW 200,000,000 as the automatic claim.

A. It is understood that the Defendant’s defense of set-off is not a set-off defense, but a mutual aid defense.

Even if C paid 200,000,000 won for licensed real estate agents, and the Defendant paid it on behalf of C.

There is no evidence to prove that the claim for indemnity is not recognized in itself.

A person shall be appointed.