2. The plaintiff's appeal and the claim extended in the trial are dismissed, respectively.

3. The costs of lawsuit shall be borne by the plaintiff in both the first and second instances.

The Defendant paid to the Plaintiff the amount of KRW 511,532,992 with 20% interest per annum from the day following the delivery of a copy of the complaint of this case to the day of complete payment (the Plaintiff extended the amount from KRW 412,662,62,627 to KRW 516,92,992 for the first time to the trial, but then withdrawn the claim for damages equivalent to KRW 5,390,00 for the amount of acquisition tax and subsequently reduced the claim amount).

2. Purport of appeal

Of the judgment below, the part against the plaintiff corresponding to the order of additional payment shall be revoked. The defendant shall pay to the plaintiff 51,373,597 won with 20% interest per annum from the day following the delivery of a copy of the complaint of this case to the day of full payment.

Defendant: The part of the lower judgment against the Defendant is revoked, and the Plaintiff’s claim corresponding to the revocation is dismissed.

The following facts are without dispute between the parties, Gap evidence 1-1, 2, 2-2, 3-1, 3, Gap evidence 4, 5, 6, 9, Gap evidence 10, 14-1, 2, Gap evidence 16, 18, 19, 20, Gap evidence 77-1, 78-1 through 4, Gap evidence 79, 80 (the same shall apply to the evidence 5), Eul evidence 87, Eul evidence 1-1 through 9 (the evidence 1-4 of Eul evidence 5), Eul evidence 5, 1-2, Eul evidence 5, 1-5, 5, 1-5, 1-5, 5, 10, 10, 5, 10, 10-1, 3-1, 1-1, 3-1, 7-1, 1-2, and 8-1, 1-1, 7-1, 7-1, and 1-2, respectively.

A. The defendant clan made the leap of the deceased's history as a common ancestor and formed naturally, centering on the village of the family of the deceased's pension, which is composed of his descendants, from a hundred years ago, the family of the deceased's clan was naturally formed, and formed around 1984, such as the number of the graves and the tombstones. Around 1984, the number of the members of the clan is 400 and the number of the members of the clan who reside in the village of this year is 51, and the non-party 5 is the representative of the clan from January 2, 1996 to January 2, 198. < Amended by Act No. 5198, Jan. 2, 1996>

B. Around March 197, the establishment of a golf course construction project plan as part of the private capital inducement project, and the head of the upper Myeon, which is Pyang-si, the main body of which is Pyang-si, constituted three Dong-dong inducement committee consisting of five foreign residents with interest rate, five local residents with interest rate, and six local residents with pension interest rate. Of the members of the pension attraction committee, five of the defendant clan is the defendant members, and the non-party 5 was the chairperson of the above inducement committee, and the plaintiff was responsible for the construction of a golf course with approximately KRW 600 project cost anticipated to cover approximately KRW 60,00,000,000 from the 643,041 square meters of forest land (number 1 omitted), 643,041 square meters of forest land (number 1 omitted), 643,041 square meters and 6442,041 square meters of forest land (number 2,301,750,005 square meters of forest land).

C. At that time, the non-party 5, who was the head of the clan of the defendant clan, was recommended by the plaintiff to sell the forest of this case, opened an extraordinary general meeting for the members of the clan residing in the separated village on April 24, 1997. The non-party 6, 7, and 8, who is a public official of the clan, was not less than 20 members of the clan, sought explanation on the business plan and necessity of the above golf course in the place where the members of the clan were collected from non-party 6, 7, and 8, etc., and decided to sell approximately 17,000 square meters of land, including each of the above forests and fields (hereinafter "the forest of this case").

D. At the time, there was no provision regarding the method of disposing of the property of the clan. The defendant clan has been conducting the business of the clan in the form of gathering opinions from the past to the members of the clan residing in the village for the migration of the clan and reporting to the next ordinary general meeting. On August 3, 1988, the defendant clan decided to sell the forest land of this case to 330,000 square meters among the forest land of this case (number 1 omitted) 6,43,041 square meters of forest land among the forest land of this case and the forest land of this case to be donated to 160,000 square meters of forest land of the above pension (number 1 omitted) as at the time when it was decided to sell the forest land of this case as at the time when it was decided to sell the forest land of this case as at the time when it was decided to sell the forest land of this case to 330,000 square meters of the above pension land of this case to 400 members of the defendant clan.

E. On April 30, 1997 between the non-party 9 and the non-party 5, who is the representative of the defendant clan, decided to purchase the forest land of this case from the defendant clan in the amount of KRW 750,000,000, but the down payment of KRW 75,000,000 on the date of the contract, the intermediate payment of KRW 75,000 on May 1, 1997, and the remainder of KRW 600,000 on July 1, 1997, the plaintiff agreed to pay the remainder of KRW 60,000 on July 1, 1997 (hereinafter "the sales contract of this case"), the down payment and intermediate payment of KRW 150,00,000 on the day of the contract, and the remainder of KRW 600,00,000 on July 1, 1997, the registration of the transfer of ownership of each of the above forest was completed under the joint name of the plaintiff 36.

F. However, since June 197, some of the clan members, including Nonparty 4, known to other clan members, opposed to the disposition of the forest land of this case, the committee for the preservation of the heritage (title omitted) was formed by Nonparty 10 and 11 as the chairperson, and the non-party 5, who signed against the disposition of the real estate for the non-party clan members from around June 1997, and used banners in front of the entrance of the village and the articles of association of the clan members, etc., the internal conflicts between the defendant clan members were occurred. On July 12, 1997, the opposing opinion opened a meeting under the direction of the above miscarriage Preservation Committee and opened a vote against the disposition of the real estate in the name of the above clan members, and opened an extraordinary general meeting on September 7, 1997, the president of the above committee for the preservation of the heritage and culture, and unilaterally dismissed the non-party 1's term of office for the non-party 4 of this case without the resolution of the general meeting of this case.

G. Nonparty 4, the president of the defendant clan, filed a lawsuit to nullify the sale and purchase agreement against the defendant clan 2 on October 21, 1997, which was sentenced to the above non-party 2 to the non-party 9's non-party 2's non-party 9's non-party 2's non-party 9's non-party 2's non-party 9's non-party 2's non-party 9's non-party 9's non-party 2's non-party 9's non-party 2's non-party 9's non-party 9's non-party 2's non-party 9's non-party 2's non-party 9's non-party 2's non-party 9's non-party 2's non-party 9's non-party 9's non-party 9's non-party 9's non-party 2's non-party 97's non-party 9's non-party 97's non-party 9's non-party 9'

H. The Plaintiff did not obtain the approval of the business plan for the construction of the above golf course until now, and the registration of transfer of ownership in the Plaintiff’s name completed with respect to the forest of this case was cancelled on October 28, 2002 due to the final and conclusive judgment of the previous suit, and the title of ownership in the forest of this case was restored to Defendant Sejong.

2. Determination of the parties' arguments

A. Determination on the claim for refund of the purchase price, etc.

(1) The parties' assertion

After the conclusion of the instant sales contract, the Plaintiff paid KRW 750,000 to the Defendant. While the Defendant deposited the above sales price in the account on February 24, 1998, the Plaintiff asserted that the Defendant paid KRW 1,00,000 from the above account to the Plaintiff for the payment of KRW 37,779,030 on April 30, 1998, KRW 37,779,030 on May 30, 1998, KRW 4,073,597 on May 30, 1998, KRW 3,000,000 on February 10, 200, KRW 2,000,000 on November 8, 200, KRW 48,4527 on November 14, 200, KRW 3,000 on the above amount of KRW 48,467,527,27,200 on the Plaintiff’s debt or other expenses.

(2) Determination

(A) According to the above facts, as long as the sales contract of this case became null and void, the defendant's above sales price was not legally attributable and obligated to return it to the plaintiff. On the other hand, Gap evidence 12-1, 2, 3, Eul evidence 86-1, 2, 5-2, 3, and Eul evidence 6-1, 7-1, 7-1 and 9-1 of the above 7-2, and the above fact that the defendant's clan 2, 9-2, 30-7, 9-7, 9-7, 9-7, 9-7, 9-7, 9-7, 200-7, 9-7, 207, 9-7, 30-7, 100-7, 197, 300-7, 190-7, 200-7, 307, 200-7, 197, 2000.

(B) First, as seen earlier, the Defendant’s payment of the instant sales price to the public health care provider for the profits accrued from the receipt of the instant sales price, and the Defendant’s payment of KRW 47,079,030 as a fixed deposit with interest accrued while withdrawing KRW 47,079,030 and consuming capital gains from the payment of capital gains tax, etc., and returned KRW 976,796,544 in excess of the deposit amount as well as remaining deposit amount. However, in a case where there is a so-called operating profit that the beneficiary left by using his own property with his own effort, etc., even if the beneficiary did not intervene in the act of the beneficiary, it should be deducted within the scope of the benefits that the beneficiary would have acquired as a matter of course, unless it is considered that the beneficiary would have acquired as a matter of course (see Supreme Court Decision 94Da25551 delivered on May 12, 195). Thus, even if the Defendant’s payment of the Defendant’s aforementioned withdrawn amount and the Plaintiff’s return amount to KRW 7500,00.

(C) Next, as to losses incurred by the Plaintiff from the payment of the purchase price of this case, barring any special circumstance, the health expenses are equivalent to the purchase price paid to the Defendant and legal interest after the payment date. Thus, as to losses incurred as of February 23, 2002, which the Plaintiff received from the Defendant for the refund of the purchase price, the amount of KRW 750,000 and KRW 150,000,00, which was paid by the Defendant, shall be deemed as legal interest on the purchase price of this case at the rate of 5% per annum from April 30, 1997 to February 23, 2002 (36,164,383,60,0000, 60,0000, which was paid by the Plaintiff, and there is no special circumstance that the Plaintiff did not have any legal interest on the purchase price of this case at the rate of 5% per annum from July 1, 1997 to February 23, 2002.

(D) Furthermore, regarding the specific scope of the profits that the defendant returns to the plaintiff, the defendant should return to the plaintiff within the scope of the loss suffered by the plaintiff. However, in light of the circumstances where part of the forest land owned by the defendant's clan was sold or donated to some members of the defendant's clan by a resolution at an extraordinary general meeting convened only for the defendant's clan, it is not recognized that the defendant's clan was a malicious beneficiary since the time when the defendant's clan held an extraordinary general meeting on September 7, 1997 and sold the forest land of this case without legitimate clan resolution, the non-party 5 was dismissed from office at the clan and the non-party 4 was appointed as a new clan of the defendant's clan from September 7, 1997, and the non-party 5 was null and void and the above sales price was received without any legal ground, and therefore, the defendant's assertion that the non-party 5 was not a beneficiary of the defendant's clan, and therefore, he did not have any obligation to receive interest accrued from the defendant's clan as the non-party 5's beneficiary.

Ultimately, at the time of February 23, 2002, the defendant is obligated to return to the plaintiff 917,465,763 won (750,000,000 +167,465,763 won (the above amount of profit is within the scope of the plaintiff's loss as of February 23, 2002) based on the annual rate of 5% from September 7, 1997 to February 23, 2002, which is the legal interest of 167,465,763 won (167,465,763 won).

(E) Therefore, even though the Defendant had the obligation to return only the above amount of profit 917,465,763 won to the Plaintiff, the Defendant already returned 997,789,001 won in excess of the above amount, so the Defendant does not bear the obligation to return unjust enrichment to the Plaintiff. Therefore, the Plaintiff’s allegation in this part is without merit.

B. Determination as to the claim for reimbursement of KRW 50,000,000

In the process of concluding the instant sales contract, the Plaintiff claimed that the representative of the Defendant clan paid KRW 50 million to Nonparty 5 for the expenses incurred in selling the clan properties, but the instant sales contract became null and void. As such, the Plaintiff asserts that the Plaintiff sought payment of the amount equivalent to the said money as restitution for unjust enrichment, compensation for damages caused by tort, or restitution for termination of the contract.

Therefore, the plaintiff paid 50,00,000 won to the non-party 5,00 won to the non-party 5 in the course of purchasing the forest land of this case from the defendant clan, although there is no dispute between the parties, further considering whether the above money was paid to the defendant's clan or to the defendant's clan, there is no evidence to acknowledge it. Rather, according to the entries of Gap's No. 7, Gap's No. 9 (the same shall apply to No. 15), Eul's No. 4, and the testimony of non-party 4 in the court below's witness's testimony, the above amount can be acknowledged that the plaintiff paid 50,00,000 won individually to the non-party 5 for the smooth progress, etc. of the sales contract of this case, separate from the purchase price, since the plaintiff's assertion that the above amount was paid to the defendant's clan or the defendant's clan for the defendant's clan without any need for further examination.

C. Determination on the claim for damages

(1) Occurrence of damages liability

According to the above facts, since the same clan property as the forest of this case belongs to the collective ownership of the members of the clan and the disposal thereof requires a resolution of the general meeting of the clan to dispose of it, although the non-party 5 was the representative of the defendant clan, as the representative of the defendant clan, the plaintiff and the non-party 5 formed the sales contract of this case with the plaintiff, even though they did not call only some of the members of the defendant clan and disposed of the real estate owned by the defendant clan, the conclusion of the sales contract of this case shall be made through legitimate procedures and with the consent of the majority of the members present, even though they had a duty to hold a general meeting and obtain approval for the disposition of the forest of this case, the resolution of selling the forest of this case was made based on the resolution of the general meeting of the clan which was defective in the procedure by failing to notify all the members of the non-party 5 of the non-party 5, who was not liable for damages caused by the non-party 5's unlawful act after the conclusion of the sales contract of this case.

As to this, the defendant, from June 197 to around the resolution of disposal of the forest of this case, set up the above miscarriage Preservation Committee against the members of the clan and took up a banner opposing it at the entrance of the village and its articles of association, and argued the invalidity of the sales contract of this case against the plaintiff due to the plaintiff's assertion that the plaintiff would purchase the forest of this case before the time of the sales contract of this case or the payment of the remaining purchase price, and the plaintiff's assertion that the sale of the members of the clan was opposing to the non-party 5 with the non-party 5 with the intention to carry out the sales contract without the legitimate clan general meeting of the defendant clan, 50 million won was actively involved in the non-party 5's illegal acts, and it was sufficiently known that the defendant's tort liability against the non-party 1 was not established. However, the plaintiff's assertion that the non-party 1's evidence No. 6, 10, 1314, 197 and No. 317 of this case's evidence No.

(2) Whether liability has been limited

In light of the above employment evidence, it is difficult for the plaintiff to unilaterally conclude the sales contract of this case without due care, without due care whether the plaintiff made a resolution on the sale of forest land of this case at the time of the sales contract of this case, and it is possible to know that the sales contract of this case was made without due resolution of the defendant clan or that it was done without due care until the payment of the remaining land of this case was made, but the plaintiff did not take measures to prevent expansion of losses, such as postponement of payment date of the remaining land of this case, and paid the remaining land of this case to the plaintiff for the sale of this case. Thus, according to the above employment evidence, it is difficult to find that the plaintiff's negligence should be taken into account in calculating the amount of compensation for damages because it is difficult for the plaintiff to unilaterally recognize that the remaining land of this case was not a legitimate resolution of the defendant clan concerning the sale of forest land of this case, and it is difficult to find that some of the members of the above clan did not have any objection to the sale contract of this case until the conclusion of the sale contract of this case. The plaintiff's objection to the remaining land of this case can not arrive.

(3) Scope of damages

(A)ordinary damages;

In full view of the statement No. 11-1 of evidence No. 8,820,00 won can be acknowledged as being paid as registration tax, when the Plaintiff completed the registration of transfer of ownership with respect to the forest of this case in the name of the Plaintiff, etc. according to the sales contract of this case, and there is no counter-proof. Since the above registration tax is normally paid for the implementation of the real estate sales contract, the Defendant is liable to compensate the Plaintiff as a tort for the damages of KRW 8,820,000.

(b)Special damage.

1) The plaintiff's assertion

The plaintiff asserts the following grounds for the claim in seeking the payment of KRW 404,260,365 of special damages.

A) Damages equivalent to interest on the purchase cost, etc. of neighboring land and trees;

The Plaintiff incurred approximately KRW 1,700,000,000 in purchase cost of land near the instant forest as follows; KRW 180,000,000 in purchase cost of trees for golf course construction; KRW 180,000 in purchase cost of trees; and KRW 189,510,000 in various registration cost; and KRW 189,510,000 in other expenses; first, the Defendant claimed for payment of KRW 404,260,365 calculated as follows.

In order to secure land in excess of a certain ratio necessary to obtain approval for a golf course construction project from May 15, 1997 to February 12, 200, the Plaintiff also purchased approximately 120,000 square meters of land in the vicinity of the instant forest (the purchase price for the year 1997 shall be KRW 1,327,741,00, the purchase price for the year 1998 shall be KRW 126,350,000, and the purchase price for the year 1998 shall be KRW 80,00,000,000, and the purchase price for the year 1999 March 15, 199 shall be KRW 126,350,00,000, KRW 12,000,000, the purchase price for the year 12,000,000) from May 12, 200.

The above money was disbursed to implement the instant golf course construction project on the premise that the Plaintiff’s sales contract is valid. Since the Plaintiff was unable to implement the instant golf course construction project centered on the forest land as the Plaintiff was unable to acquire ownership of the instant forest due to Defendant clan’s tort, the Plaintiff suffered damages equivalent to the statutory interest rate under the Civil Act for the period after the disbursement of each of the above expenses for the total of KRW 1,726,091,000 (1,546,091,000 + 180,000,000) including the purchase price of neighboring land and the purchase cost of trees in the instant forest.

Meanwhile, since the heads of the clans and some of the clans were the promoters and promoters of the above golf course construction plan, Defendant clan knew or could have known that the Plaintiff was unable to implement the golf course construction plan in itself if the instant forest land becomes null and void as the core point of the construction of the golf course, it was impossible for the Plaintiff to purchase neighboring forests and trees, thereby causing the damages to the Plaintiff.

(4) From December 31, 197 to October 28, 202, the delivery date of a copy of the complaint of this case x 43,471,232 won (180,00 x 0.05 x 1,763/365; hereinafter the same shall apply) for the plaintiff 180,00,00,000 x 36.40,000 x 1,3296.48,00 x 1,367,000 x 96.36.4,00 x 96.4,00 x 5.6,00 x 20,000 won for each land x 1,327,741,000 x 96.4,000 won for the remaining x 3.5,000 won for the above land. < Amended by Act No. 5329, Dec. 31, 1997, 2097>

B) Compensation for damages arising from the loss of development gains

If the sales contract of this case was not null and void, the Plaintiff could obtain approval for the business plan of the golf course. Accordingly, the Plaintiff may obtain profits exceeding KRW 1,500,000,000, which was paid by the Plaintiff for the purchase cost, from at least KRW 1,546,091,00,000, which was paid by the Plaintiff for the purchase cost. As such, the Plaintiff suffered losses due to the Defendant’s tort, first of all, sought payment of KRW 404,260,365 out of the above damages to the Defendant.

2) Determination

Therefore, the plaintiff's purchase price of 0.0 won and 4, Gap's 23 through 76 (including number 8, 85), Eul's 17-1, 28 Eul's 18-2 and 90-1000 won and 90.0 won for the above construction of 0.0 Do's 10-777, 1997, 138-197, 90-77, 100-7, 900 won and 10-7, 90-7, 900 won for the above construction of 138-7, 1997, 200-7, 00 won for the above construction of 0-7, 00 won and 10-7, 900 won for the above construction of 0-1,000 won and 1,000 won for the above construction of 1,000 won and 1,000 won for the above construction of forest.

According to the above facts, it is acknowledged that the Plaintiff used the above costs for purchasing nearby land and trees, but it cannot be concluded that the Plaintiff actually incurred damage equivalent to the statutory interest on the purchase cost solely on the ground that the Plaintiff acquired or actually acquired ownership of neighboring land, and there is no evidence to acknowledge that the Plaintiff actually incurred damage equivalent to the statutory interest on the purchase cost. ② There is no evidence to acknowledge that the Defendant knew or could have known that there was a need to purchase trees in advance because the Plaintiff anticipated the need for supplementary planting after the opening of a golf course in the construction of a golf course normally requiring several years without the approval of the golf course project plan. ③ Even if the Plaintiff acquired ownership of the forest of this case, there is no evidence to acknowledge that the Plaintiff completed the construction of a golf course by clearly implementing a large number of administrative procedures, such as permission for diversion of farmland from the Ministry of Agriculture and Forestry, deliberation and public notification of the National Land Use Planning Council, approval by the Minister of Environment through environmental impact assessment, approval of the Ministry of Environment from the Gyeongnam-do, and approval of the Plaintiff’s evidence No. 1, No. 381 through evidence No. 2, No. 30 and evidence No.

(4) Judgment on the defendant's defense of set-off

The Defendant’s assertion to the effect that the Plaintiff’s claim for the refund of KRW 247,789,001 ( KRW 997,789,000 - KRW 750,000) that was paid from the Plaintiff upon the invalidity of the instant sales contract would be offset against the Plaintiff’s claim for the refund of KRW 247,789,00 ( KRW 997,789,001 - KRW 750,000) that was refunded in excess to the Plaintiff, and thus, the Defendant’s claim for the refund of KRW 750,000 and the Defendant’s damage claim of this case would be offset to the extent on

Therefore, the defendant should only return 97,765,763 won to the plaintiff as unjust enrichment. Since the defendant returned 97,789,001 won to the plaintiff above, the plaintiff without any legal ground. Thus, the plaintiff obtained profits equivalent to 80,323,238 won (97,789,01 won - 917,465,763 won) which is the difference, and the defendant has a claim for return of unjust enrichment of 80,323,238 won against the plaintiff. Since it is apparent in the record that the defendant expressed his intention of offset by the delivery of the preparatory document as of April 205 of this case, the plaintiff's above 8,820,00 won was extinguished by a set-off. Therefore, the above defendant's defense is justified.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed due to the lack of reason, and the judgment of the court below is partially different from this conclusion [the part of the judgment of the court below concerning the claim for damages equivalent to 5,390,000 won of acquisition tax is excluded from that of the judgment of the court below as the plaintiff was withdrawn from the claim to the court below for the first time.] Thus, the part against the defendant among the judgment below which accepted the defendant's appeal and dismissed the part against the defendant, and the plaintiff's claim corresponding to that part is dismissed, and the plaintiff's appeal and the claim extended in the court

Judges Park Hong-woo (Presiding Judge)