(영문) 부산지방법원 2016. 1. 21. 선고 2015나9629 판결[손해배상(기)등][미간행]
Plaintiff (Attorney Kim Byung-jin, Counsel for the plaintiff-appellant)
Defendant 1 and one other
December 10, 2015
Busan District Court Decision 2014Da87683 Decided June 25, 2015
1. The plaintiff's appeal and the defendant's conjunctive claim for the development of blue Water Co., Ltd. added in the trial are all dismissed.
2. The appeal cost (including the cost due to the modification of the claim) shall be borne by the Plaintiff.
The judgment of the first instance court is revoked. The first instance court is revoked. ① The Defendants jointly and severally pay to the Plaintiff the amount of KRW 40 million with 20% interest per annum from the day following the delivery day of the payment order of this case to the day of full payment. ② The Plaintiff seeks, in preliminary, payment of money, such as the statement in the primary claim, against the Defendant Cheong Water Development Co., Ltd. (the Plaintiff initially filed a claim for damages against the Defendants, and added the claim for return of unjust enrichment to Defendant Cheong Water Development Co., Ltd. at the first instance trial).
1. Quotation of judgment of the first instance;
The court's reasoning for this case is as follows: Gap's evidence submitted at the court of first instance, which is insufficient to acknowledge the plaintiff's assertion, shall be rejected; the court below's reasoning is as follows: the plaintiff's conjunctive claim for the development of the defendant corporation at the court of first instance shall be added to the plaintiff's conjunctive claim at the court of first instance under the fourth 9 of the court of first instance, and it shall be cited as it is in accordance with the main text of Article 420 of the Civil Procedure Act.
The Plaintiff asserts that the instant sales contract is null and void as it was originally impossible to transfer ownership of the instant land from the time of the conclusion of the sales contract, since it was amended by the Dong-si Urban Planning Ordinance on February 28, 2013, which was prior to the conclusion of the instant sales contract, and that Defendant Cheong Water Development should return the purchase price of KRW 40 million to the Plaintiff as unjust enrichment.
The issue of whether a contract is originally impossible is not limited to physical impossibility, but should be determined according to the concept of society or the concept of trade in society. However, the mere fact that the content of a contract was in violation of the prohibition prescribed by law and was illegal does not necessarily mean that the contract had a state of original impossibility from the time of the contract in light of the concept of trade in society or the concept of trade in society (see Supreme Court Decision 2010Da41294, Oct. 14, 2010).
In light of the above legal principles, the fact that the Plaintiff entered into the instant sales contract with Defendant Young-si Development with the price of KRW 40 million on July 26, 2013 is as seen earlier. According to the Plaintiff’s statement and the overall purport of oral argument as to Gap Young-si Urban Planning Ordinance No. 16, the provision related to the restricted area of land division among the Ordinance on Andong-si Urban Planning was amended on February 28, 2013. According to the above revised provision (Article 22(1)1 of the Ordinance on Andong-si Urban Planning), if the land category is forest, green area planning, production management area, and production management area, it shall be divided into at least 90 square meters, and if the land category is a green area, planning, and production management area, it shall not be divided into below the above size. However, the above circumstance alone is insufficient to acknowledge that the instant sales contract was an original impossibility because it was impossible to transfer ownership since the date of entering into the instant sales contract, and there is no other evidence to acknowledge the Plaintiff’s assertion.
Therefore, the plaintiff's above assertion is without merit to examine further.
3. Conclusion
The plaintiff's main claim against the defendants and the conjunctive claim against the defendant for the development of clean water shall be dismissed in its entirety due to the lack of any reasonable ground. The judgment of the court of first instance on the main claim is just in conclusion, and the plaintiff's appeal and the conjunctive claim added in the trial are dismissed in its entirety.
Judge Cheong Gyeong-sung (Presiding Judge)