2017dan2684 (Counterclaim) Return of unjust enrichment

2. The Plaintiff (Counterclaim Defendant)’s remaining principal claim and the Defendant (Counterclaim Plaintiff)’s counterclaim are dismissed, respectively.

3. The costs of lawsuit are assessed against the Plaintiff (Counterclaim Defendant) and the remainder, respectively, by the Plaintiff (Counterclaim Plaintiff).

4. Paragraph 1 can be provisionally executed.

It shall pay to 35,00,000 won with 15% interest per annum from the service date of the copy of the complaint of this case to the day of complete payment.

Counterclaim: The plaintiff shall pay to the defendant the amount of KRW 10,00,000 and the amount equivalent to 5% per annum from September 22, 2016 to the service date of a duplicate of the counterclaim of this case, and 15% per annum from the next day to the day of complete payment.

1. Basic facts

O The plaintiff is a member of the Handong District Housing Association that purchased an apartment building of 102, 1202, dong 1202 (hereinafter referred to as "the apartment of this case") in Daegu Suwon-gu.

The Plaintiff paid KRW 26,420,00 as the sales price of the apartment of this case. The Plaintiff borrowed KRW 184,940,000 in total and paid the land price and the sale price of the instant apartment of this case (from No. 1 to No. 6).

O When the Plaintiff was placed in a position where it is impossible to pay the 7th apartment sales advance payment, the Plaintiff transferred all the rights, such as the right to sell the apartment in this case, to Non-Party DoD (hereinafter referred to as “D”) on July 19, 2016.

OD entered into a sales contract on July 19, 2016 with regard to the apartment of this case with the Defendant for the purchase price of KRW 321,530,000.

(O) On July 19, 2016, the Defendant remitted KRW 80,000,000 to the Universal Village District Housing Association, and KRW 27,005,554 out of the above money was paid as the deposit for the seventh sale of the apartment in this case, and money was paid as the deposit for the apartment in this case,

52,994,946 won was recovered by D.

OD borrowed KRW 26,572,00 on July 22, 2016 and did not pay KRW 26,420,000 for the instant apartment after acquiring the right to sell the instant apartment (the intermediate payment) (the due date for payment was June 30, 2016), and E, which actually purchased the instant apartment as the Plaintiff’s relative by marriage, had concerns over the loss of the Plaintiff’s membership as to the instant apartment, and paid the intermediate payment and overdue interest thereon on July 22, 2016.

O The defendant filed an application for provisional disposition against the prohibition of disposal of the right to claim for the registration of ownership transfer of the apartment of this case with the plaintiff and the third debtor as the plaintiff and the third debtor's home cooperative in the village of Taegu District Court No. 2016Kadan38, and the above court accepted the provisional disposition on August 23, 2016.

(O) On September 1, 2016, the registration of ownership preservation was completed in the future of the plaintiff on the apartment of this case.

OD committed suicide on September 9, 2016.

O On September 21, 2016, the Defendant filed an application against the Plaintiff for a provisional injunction against the instant Pakistan with the Daegu District Court Decision 2016Kadan462.

O) On September 22, 2016 upon the request of the Plaintiff and E, the Defendant: (a) transferred the ownership of the instant apartment on September 22, 2016 to the Defendant; (b) the Defendant, out of the purchase price of KRW 45,000,000, KRW 10,000,000, on September 22, 2016, shall pay the Plaintiff the remainder of KRW 25,000 to the Defendant on September 30, 2016; (c) the Plaintiff shall pay the Plaintiff the remainder of KRW 5,00,000 in installments by the end of each month after September 30, 2017 (hereinafter referred to as “the loan certificate”); and (d) on the same day, the Plaintiff paid KRW 10,000,000,000 to the Plaintiff on the same day according to the details of the loan certificate; and (d) the Plaintiff completed the ownership registration of the instant apartment on the same day.

O On September 23, 2016, the defendant withdrawn the provisional disposition filed by the Daegu District Court 2016Kadan4462.

O The Defendant remitted 13,270,000 won on September 30, 2016 to the Incheon Village District Housing Association, and 230,000,000 won on October 4, 2016, and repaid 184,940,000 won on the land and proceeds from the sale of the apartment of this case (from No. 1 to No. 6) that the Plaintiff received from the Plaintiff, and paid 58,30,000 won on the apartment of this case.

O) On September 21, 2016, the Defendant filed a complaint with the Daegu District Prosecutors' Office No. 2017 type No. 184, on the ground of a crime that "the Plaintiff and E threatened the prospective person to transfer the ownership of the instant real estate without paying KRW 45,00,000 to himself/herself, thereby having prepared the instant loan certificate and transferred KRW 10,000 to the Plaintiff's account." However, on April 13, 2017, the Defendant filed a complaint with the Prosecutor No. 2017 type No. 184 of the Daegu District Prosecutors' Office, but the Prosecutor was not subject to the disposition of non-prosecution on the charge of the above crime (defensive of evidence

[Ground of recognition] Facts without dispute, Gap evidence 1 through 5 (if there are provisional numbers, referring to the number), Eul evidence 1-1, 2-2, Eul evidence 2-4, Eul evidence 3-1, 2, Eul evidence 3-1, 4-8, Eul evidence 4-8, the purport of the whole pleadings

2. The parties' assertion and judgment

A. The parties' assertion

(1) The plaintiff's assertion (the plaintiff's claim for lawsuit)

The Defendant is obligated to pay to the Plaintiff KRW 35,00,000, not paid out of the agreed amount of KRW 45,000,000 in accordance with the contents of the loan certificate of this case and damages for delay from the day after the delivery of the copy of the complaint of this case.

(2) The defendant's assertion (claim)

The plaintiff and E transferred all rights to the apartment of this case to D and died of D even though they did not have any rights to the apartment of this case.

In an opportunity for the registration for the preservation of right to sell the apartment of this case to the Plaintiff, if the right to sell the apartment of this case is purchased from D to the Defendant and the Defendant who has a legitimate right to the apartment of this case fails to additionally pay KRW 45,00,000 to the Defendant, the ownership of the apartment of this case should be transferred to the other party and the loan certificate of this case should be prepared by using the Defendant’s old state in which the Defendant was old, so the agreement based on the loan certificate of this case constitutes a juristic act of which fairness is considerably lost. Therefore, the Plaintiff is obligated to return KRW 10,00,000 paid to the Defendant on September 22, 2016 as unjust enrichment.

(b) Markets:

(1) Determination on the main claim

A) If the authenticity of a disposal document is recognized, the court should, in principle, recognize the existence and content of the declaration of intent in accordance with the language and text stated in the disposal document, unless there is any clear and acceptable reflective evidence that denies the contents of the statement.

B) According to the loan certificate of this case where there is no dispute as to the authenticity of its establishment, the Defendant is obligated to pay KRW 10,000,000,000, out of the agreed amount of KRW 45,000,000, out of KRW 35,000 pursuant to the loan certificate of this case, barring any special circumstance, until September 30, 2016, until October 31, 2016, KRW 5,000,000 until December 31, 2016, until December 30, 2016, KRW 5,000,000 until December 31, 2016, and KRW 5,000,000 until January 31, 2017.

C) As to whether the agreement based on the loan certificate of this case is null and void, there is no dispute between the parties that the Plaintiff’s name and the Plaintiff’s name indicated in No. 2-1, No. 2-1, and No. 3-1, are based on the Plaintiff’s seal, but D does not dispute between the parties that the Plaintiff’s seal is affixed to each of the above documents and written it, and as to whether the agreement based on the loan certificate of this case is null and void, No. 2-4, and 5 alone

Inasmuch as it is insufficient to recognize that the Plaintiff had the authority to seal the Plaintiff’s seal, it is impossible to use it as evidence, and the entries of the evidence Nos. 1, 2, 2-2, 2-2, 4, 5-2, 3-2, and 4 through 8-2 of the evidence Nos. 1-2, and 4 through 8 are insufficient to recognize that the Plaintiff and E threatened the Defendant and caused the Defendant to prepare the instant loan certificate by using the Defendant’s old condition, and there is no other evidence to prove otherwise (the same shall apply to cases where the admissibility of evidence of evidence No. 2-1 through 3, and No. 3-1 of the evidence No. 2 is recognized). Therefore, the Defendant’s defense is groundless.

D) Therefore, with respect to KRW 25,00,000, the delivery date of a copy of the complaint of this case, among KRW 35,000,000, which was due due to the loan of this case, which was due until January 25, 2017, the delivery date of a copy of the complaint of this case, the Defendant is obligated to pay to the Plaintiff 5,000,000,000, which was to be paid to the Plaintiff from January 26, 2017, which was the day following the delivery date of the copy of the complaint of this case sought by the Plaintiff, until January 31, 2017, which was 5,00,000, which was to be paid from February 1, 2017, until February 28, 2017, which was 5,000,000, which was to be paid from March 1, 2017 to each of the above 0,000,000 won, respectively, respectively.

(2) Determination on the counterclaim claim

The agreement based on the loan certificate of this case cannot be deemed null and void as an unfair juristic act is the same as the judgment on the claim in the principal lawsuit. Therefore, the defendant's counterclaim based on such premise is without merit.

3.In conclusion

Therefore, the plaintiff's claim of this case is justified within the scope of the above recognition, and the remaining claims are dismissed as it is without merit. The defendant's counterclaim of this case is dismissed as it is without merit. It is so decided as per Disposition.