[2] The case holding that where the Korea Housing Guarantee Co., Ltd., after the default of the housing construction company, selected a successor executor and completed the performance of sale under the housing sale guarantee contract, the balance of sale from the buyer under the housing sale guarantee contract shall not be deemed unjust enrichment

[2] The case holding that the house sale guarantee contract is "a contract for a third party entered into with the buyer as the beneficiary", but when the housing construction company failed to perform the sale contract due to the default, the buyer's demand for the sale to the Housing Guarantee Co., Ltd. shall be deemed to have expressed an intent of profit in the contract for the third party, and therefore, the Korea Housing Guarantee Co., Ltd. or the successor's selection has the right to seek payment of the sale balance under the Housing Sale Guarantee contract, and the successor's executor does not constitute unjust enrichment paid by the buyer from the buyer under the Housing Sale Guarantee contract without any legal ground.

2. The costs of lawsuit are assessed against the plaintiffs.

Preliminary purport of claim: On December 31, 1997, between the Defendant’s Housing Guarantee Co., Ltd. and the Gyeong-gu Construction Co., Ltd. (Yyeong-gu, Incheon, Seo-gu, 440-3, the representative director Lee Jong-dae) the agreement on the transfer and acquisition that the Defendant’s Housing Guarantee Co., Ltd. shall transfer the claim for the remainder of the sale of 608 units to the Defendant’s Housing Guarantee Co., Ltd. on the 295-1, Seo-gu, Seo-gu, Incheon, Seo-gu, to the Defendant Housing Guarantee Co., Ltd., and the Defendant’s Housing Guarantee Co., Ltd., Ltd., paid the amount of KRW 523,264,906, KRW 891,831, and each of the above amounts from May 5, 2001 to the day of full payment.

The following facts may be acknowledged, either in dispute between the parties or in accordance with Gap evidence 1 through 3, 5, 7, and Eul evidence 1 through 5, and 8, by integrating the whole purport of the pleading:

A. On February 7, 1996, the name was changed to 21,839 square meters on the ground of 5 lots, such as 295-1, Seo-gu, Incheon, Seo-gu, Seo-gu, Incheon, Seo-gu, the name was changed to 21,839 square meters on the ground of 608 square meters between the Defendant's Housing Guarantee Co., Ltd. (hereinafter "the apartment of this case"), which had been running the business of newly building and selling 608 households (hereinafter "the apartment of this case"), and the new construction of new construction (hereinafter "Seoul Construction"), was changed to the organization as above pursuant to Article 5 (3) of the Addenda of the Housing Construction Promotion Act. In the event that the above new construction fails to perform the sales contract with the buyers due to bankruptcy, etc., the sales contract was refunded down payment and intermediate payment paid by the purchaser or the housing sale guarantee contract was concluded as follows.

(i)in the event that the refund of contract deposits and part payments is undertaken, only the down payment and part payments already paid shall be paid;

(ii)In the case of the sale of the housing in question, the management committee of the defendant company shall select the successor contractor if the joint guarantor of the contract under the agreement on the guarantee of the contract succeeds to the performance and if the joint guarantor of the contract inevitably fails to perform the succession performance due to bankruptcy, etc., and the remaining sale price shall be paid to the successor contractor.

(b)Around December 196, 1996, the new construction entered into an apartment sale contract with each apartment unit entered in the same list as the buyers listed in [Attachment 1 and 2] (hereinafter referred to as "each unit buyers of this case").

C.However, when the new construction was in progress on December 23, 1997 when the new construction was in progress, the construction was suspended due to the wind and no longer possible execution of the above apartment sale contract, the buyer of this case was designated as the successor construction contract on April 1, 1998 by the defendant company between the defendant company and the central public corporation (hereinafter referred to as the "central public corporation"), which is the guarantee company for the construction of new construction, as stipulated in the above housing guarantee contract, and the defendant company agreed to implement the remaining construction of the apartment of this case. However, the above succession construction contract was terminated due to the circumstance where the central public corporation could not perform the construction later, and on June 16, 1998, the defendant company was designated as the successor construction company under the above housing sale guarantee contract (hereinafter referred to as the "right construction"), and the remaining construction work is to be executed by the defendant company, and the remaining construction work is to be executed by the defendant company and the remaining construction is to be paid to the defendant company after completion of the construction contract.

D. On December 5, 1998, the Plaintiff had provisionally seized the claim for the remainder of sale against the first buyer of this case under the Promissory Notes amounting to KRW 877,730,500 for the said new construction, which was equivalent to the amount of KRW 87,730,50 for the said new construction, by the Incheon District Court 98Kadan68358, but based on the original of the payment order with the executory power of the court 99j781 for the said new construction, the Plaintiff was issued the seizure and the whole order of the claim transferred from the provisional seizure under the above provisional seizure as of April 14, 1999. The above order was served on the first buyer of this case on September 2, 199, and became final and conclusive on February 12, 200.

E. On December 5, 1998, the court of the highest judgment issued a provisional attachment of the claim for the remainder of sale against the second buyer of this case under the Promissory Notes amounting to KRW 152,684,281 for the above new construction, which was issued by the court of Incheon District Court 98Kadan68357, on the basis of the claim for the promissory Notes amounting to KRW 152,684,281 for the above new construction, and upon the execution order with the executory power of the court 9j782 for the above new construction, the court of the highest judgment issued an order for the seizure and all of the claims that were transferred from the above provisional attachment to the original seizure under the same court 99Kagi294 on April 14, 199, and the above order was served on the second buyer of this case on May 6, 199. The order became final and conclusive on July 15, 199.

(f)On the other hand, the buyers Nos. 1 and 2 of this case paid the sales price and intermediate payment to the new construction after the conclusion of the sales contract, and after the defendant company had the above floating construction succeed to construction of the apartment of this case, the sales price was paid to the defendant company from September 200. Accordingly, until September 200, the amount paid to the defendant company out of the sales price by the buyers of this case is KRW 523,264,906, and KRW 86,891,831 of this case as stated in the column for the payment amount in the attached Tables No. 1 and 2.

2. Judgment on the main claim

A. Part of claim against the defendant company

The plaintiffs asserted that although the above new construction had received all the claims for the remainder of sale against the buyers of this case from the new construction, the defendant company received the remainder of sale without any legal cause and thereby, the plaintiffs suffered losses from the loss of claims for the remainder of sale, so the defendant company has the obligation to return the remainder of sale to each plaintiff as unjust enrichment.

In this case, if the defendant company, the guarantor of the sale of housing, selected the succeeding executor and agreed to receive the payment of the sale price if the new construction failed to perform the obligations under the sale contract due to bankruptcy, etc., under the housing sale guarantee contract concluded on February 7, 1996, the defendant company, the guarantor of the sale of housing, and the succeeding executor selected by the defendant company failed to perform the obligations under the sale contract. This is because the new construction is unable to perform the sale contract with several buyers due to bankruptcy, etc., and the conditions for the contract guarantor or the succeeding executor appointed by the defendant company to perform the sale are fulfilled, the successor company would receive the payment of the sale price and at the same time the new construction agreed to waive the above payment of the sale price. Thus, the defendant company's right to request the sale price to the above new construction company by selecting the buyer as the succeeding executor after the default of the new construction and performing the sale contract as the execution of the sale price. Furthermore, the defendant company's right to request the sale price to the above new construction company can not be seen as being extinguished.

Therefore, the above seizure and assignment order of the plaintiffs, which was made after the termination of the claim for the remainder of the sale price against the buyers of this case, is null and void since it is subject to non-existent claims. Thus, even if the defendant company received the remainder of sale from the buyers of this case, it cannot be said that the plaintiffs suffered losses, and further, it cannot be said that the defendant company received the remainder of sale from the buyers of this case without any legal ground since it was in accordance with the above housing sale guarantee contract, it cannot be said that the defendant company received the remainder of sale price without any legal ground.

B. The part of the claim against the defendant's temporary domicile

The plaintiff Jeon Jong-si, who received an order of seizure and assignment of the obligation for the remainder of sale from the same plaintiff, asserted that the above plaintiff's claim for the remainder of sale had expired by paying 31,781,830 won to the defendant company. Thus, the defendant Jong-si has the obligation to compensate the above amount of the remainder of sale to the plaintiff.

Therefore, the above plaintiff received an order of seizure and assignment concerning the remaining claim for the sale in lots, but this is an object of a non-existent claim and no validity exists. Therefore, the above plaintiff's above assertion based on the premise that the above seizure and assignment order is valid is without merit.

3. Determination on the conjunctive claim

The plaintiffs asserted that the above new construction has agreed to transfer to the defendant company the claim for the remaining purchase price of the apartment of this case, the only active property of which was in excess of the debt due on December 23, 1997, when the above new construction had been liable for the payment of promissory notes of KRW 1,029,414,781 (=87,730,500 +152,684,281) against the plaintiffs, and that the defendant company would be prejudicial to other creditors, and that the above assignment agreement between the non-party new construction and the defendant company should be revoked as a fraudulent act, and the defendant company should return the remaining sale price received from the buyer of this case as restitution to its original state.

Therefore, according to the statement in Gap evidence No. 6, a letter of transfer was prepared and submitted to the defendant company with the purport of transferring all rights to the third party, including the claim for the remaining purchase price for the apartment of this case, to the defendant company. However, as seen above, the payment of the remaining sale price by the defendant company under the above house guarantee contract regardless of the existence or validity of the letter of transfer. Thus, the above assertion by the plaintiffs under the premise that the defendant company received the remaining sale price claim from the light construction and received the remaining sale price based on the above premise that the remaining sale price was received by the light construction, it is without any reason to examine the above opinion without any reason (the claim that can be protected by the creditor's right of revocation is, in principle, a fraudulent act. However, there is no evidence that the plaintiffs acquired the claim for the promissory note payment against the new construction before the conclusion of the above contract for the transfer of the remaining sale price claim).

4. Conclusion

Therefore, all of the plaintiffs' claims are dismissed as it is without merit, and it is so decided as per Disposition.

Judges Park Jong-soo (Presiding Judge)