2. B

[Judgment of the court below]

[Judgment of the court below]

2. D Co., Ltd.

Defendants Law Firm LLC, Attorneys Cho Il-tae et al., Counsel for the Defendants

2. The costs of appeal are assessed against the Plaintiffs.

The reasons to be stated in this part are as follows, if the court excludes the parts used by the court as follows, it is identical to the part of "1. Recognizing facts" among the reasons for the judgment of the court of first instance. Thus, it refers to the summary of Article 420 of the Civil Procedure Act as it is.

(a) Part 4, Section 7, "B, the defendants' transfer of the position of the executor of the hotel in this case to "B, the transfer of the position of the seller of the hotel in this case and the change of the owner of the building", and the "the position of the seller of the hotel in this case" in the same 10th th th th th th th e as "the status of each Doer".

(b) Each content-certified mail sent out of Nos. 4, 19, 5, and 4, respectively, and each of the above content-certified mail reached Defendant D at that time.

2. Determination as to the claim against Defendant C

A. Grounds for the plaintiffs' claims

1) In the instant supply contract, where the occupancy of the plaintiffs has been delayed for more than three months from the date scheduled for occupancy due to the reasons attributable to the defendant C, the right to rescind the said supply contract shall be granted (Article 11(3)3), and where the above supply contract is rescinded for the said reasons, the plaintiffs shall be entitled to pay 10% of the total purchase price as penalty (Article 12(3)).

2) Even if the instant supply contract determines the scheduled date for completion of March 2018, it is not explicitly prescribed as to the scheduled date for occupancy. However, if the construction is completed, it would be possible to occupy immediately, and the scheduled date for occupancy should also be deemed as the same as the scheduled date for completion of the instant supply contract.

3) Defendant C failed to complete the instant hotel until three months from March 2018, the scheduled date for completion of the instant hotel. On June 15, 2018, Plaintiff B expressed his/her intent to cancel the instant supply contract if the instant hotel was not completed by the end of June of the same year, and Plaintiff A expressed his/her intent to cancel the instant supply contract on August 14, 2018 on the ground that the instant hotel was not completed. Since the instant supply contract was lawfully rescinded by the Plaintiffs’ declaration of intent, Defendant C is obligated to return the down payment already received from the Plaintiffs and pay a penalty equivalent to ten percent of the sales price as penalty.

b) the board;

1) Whether the instant supply contract set forth “the scheduled date of initial occupancy”

A) Article 6 of the Act on Sale of Building Units provides that a seller of buildings in units shall openly recruit persons who purchase buildings in units in accordance with the sale advertisement after being notified of the receipt of a report on sale of buildings in units (Paragraph 1), and the sale advertisement above shall include matters prescribed by Presidential Decree, such as the location and use of the buildings in units and the earthquake-proof design (Paragraph 2). In addition, Article 8(1)10 of the Enforcement Decree of the same Act provides that the completion plan and the scheduled date of occupancy shall be included in the sale advertisement above.

B) As to the scheduled date for completion of the instant supply contract and the scheduled date for occupancy, “the scheduled date for completion: 03 months (the scheduled date for occupancy may be changed according to the process, and the accurate date for occupancy may be later notified)”; Defendant D transferred the status of the seller of the instant hotel from Defendant C on January 24, 2018; and on March 9, 2018, the fact that the owner of the instant hotel changed from Defendant C to Defendant D is recognized as above.

In addition, according to the evidence No. 3 and evidence No. 9-1 and No. 2 of this case, (1) the hotel sales advertisement of this case did not contain the scheduled date for occupancy; (2) the head of Pyeongtaek-si issued a corrective order to Defendant C on the ground that he/she did not state the scheduled date for occupancy in the sale advertisement as prescribed by Article 6 of the Act on Sale of Buildings on March 6, 2018; and Article 8 of the Enforcement Decree of the same Act; (3) The Defendants issued a corrective order to the 0 press of March 15, 2018 that "the accurate scheduled date for occupancy: the due date for occupancy: July 1, 2018 to August 31, 2018; (4) the Plaintiffs did not request the extension of the contract of this case to the 3-month scheduled date for occupancy; (5) the Plaintiffs did not request the extension of the contract of this case to the 10-month scheduled date or renewal of the contract of this case to the Plaintiffs; and (5) the Plaintiffs did not request the extension of the contract of this case to the 2-month scheduled date.

C) In full view of the circumstances such as ① the scheduled date for completion and the scheduled date for occupancy, ② the “scheduled date for completion” as “ March 2018,” explicitly stated in the supply contract of this case as “the scheduled date for completion,” but the “scheduled date for occupancy” as “the specific date for the “scheduled date for occupancy,” ③ the head of Pyeongtaek-si, the permitting authority for the hotel sales business of this case, did not state the “scheduled date for occupancy,” and issued a corrective order to Defendant C on the basis of the aforementioned circumstances; ④ the Defendants’ publication of the scheduled date for entry after receiving the corrective order as “the scheduled date for entry, August 31, 2018,” it is reasonable to view that the instant supply contract of this case does not explicitly state the “scheduled date for initial occupancy.”

D) Therefore, the instant supply contract did not stipulate the “scheduled date of initial occupancy”, and only the “scheduled date of initial occupancy” shall be deemed to have been designated as “from July 1, 2018 to August 31, 2018” through the publication of correction as stated in the preceding paragraph, and the right to rescission under Article 11(3)3 of the same contract shall be deemed to have occurred when the first occupancy was not completed on November 30, 2018 after three months from the “scheduled date of initial occupancy.”

2) Whether a “scheduled date of occupancy at the beginning” can be deemed March 2018 through interpretation.

A) As to this, the Plaintiffs asserted that: (a) even if the Defendants made a corrective advertisement in accordance with the corrective order issued by the head of Pyeongtaek-gu, it does not immediately be incorporated into the terms of the instant supply contract; (b) Defendant D refused to enter into a new supply contract with the Plaintiffs by reflecting the above corrective advertising content; (c) it should be deemed that the supply contract was not concluded; (d) the scheduled date of entry into the instant supply contract should also be deemed as the scheduled date of completion; and (d) the new supply contract prepared by Defendant D should be deemed as the same as the scheduled date of completion of completion of the occupancy; and (e) considering the fact that the scheduled date of entry into the instant supply contract is immediately the next day after the scheduled date of completion of the occupancy, notwithstanding the circumstances described in the preceding paragraph, the “scheduled date of entry into the original occupancy” under the instant supply contract can be interpreted as March 2018.

B) As alleged by the plaintiffs, the terms of the instant supply contract in itself are deemed as complete, and even if it should be determined at the time of the beginning occupancy at the time of the conclusion of the instant supply contract, it is reasonable to regard the above supply contract as the subject matter of the building scheduled to be constructed at the time of the conclusion of the instant supply contract, and the plaintiffs and the defendant C as the subject matter of the building scheduled to move to the hotel in this case as a flexible setting by reflecting the progress of the construction work, etc. ( even if it goes against the provisions of the Act on Sale of Buildings in which the scheduled date of moving to the hotel in this case is indicated in sale advertisements, etc. and the Enforcement Decree of the same Act, it is difficult to see that the above supply contract is invalid by itself as a violation of the mandatory law). In light of the above circumstances, it is reasonable to regard the plaintiffs and the defendant C as an agreement to determine the time of moving to the hotel in this case as the indefinite time limit, and the specific contents of the indefinite time limit as the "when a reasonable delay period has elapsed in light of the progress of the hotel work and the social situation."

C) In light of the following circumstances, which are acknowledged as having no dispute over the aforementioned evidence, the entry of No. 8 evidence, and the purport of the entire pleadings, it is difficult to readily conclude that the evidence submitted by the Plaintiffs alone was “three months after the date on which the reasonable construction delay period, which is possible, has elapsed” in the same sense as the evidence in the preceding paragraph at the time when the Plaintiffs expressed their intent to cancel the contract.

(1) The aforementioned facts are acknowledged that the scheduled date of occupancy can be changed according to the fairness in the instant supply contract. The Plaintiffs seem to have been aware that the completion of the hotel of this case can be delayed from the terms of the instant contract.

(2) At the time of the rescission of the instant supply contract, the Plaintiffs did not pay the first intermediate payment of the head office of this case among the hotel of this case (the intermediate payment was allowed to be made in installments in four installments). The Defendants also did not demand the payment of the said intermediate payment to the Plaintiffs before May 2018. Moreover, the circumstance that both the Plaintiffs and the Defendants knew that the completion of the instant hotel might be delayed, and understood that the completion of the instant hotel might have been delayed.

(3) The Defendants, upon receipt of a corrective order from the head of Pyeongtaek-gu around March 2018, publicly announced the scheduled date of entry as “from July 1, 2018 to August 31, 2018.” As such, the scheduled date of entry into the said room appears to have been determined by reflecting the progress of construction around March 2018. There is no circumstance that the Defendants raised an objection, such as “the scheduled date of entry into the room too late for other buyers.”

(4) As the hotel of this case was completed on October 30, 2018, multiple buyers could move into the hotel from October 30, 2018. As alleged by the Plaintiffs, if the scheduled date of the first occupancy of the hotel was set at around four months after reflecting the progress of the construction before the expiration of the “scheduled date of the first occupancy”, if the new scheduled date of the opening room was set at around four months after reflecting the progress of the construction before the expiration of the scheduled date of the first occupancy, it is difficult to evaluate it as “unreasonable unreasonable construction delay.”

D) Meanwhile, as seen earlier, the “scheduled date of completion” in a new supply contract provides that “the scheduled date of completion of construction” shall be “the date of June 30, 2018,” and “the scheduled date of entry into the supply contract” shall be “from July 31, 2018 to August 31, 2018.” Therefore, even if “the scheduled date of initial occupancy” in the supply contract of this case, as alleged by the Plaintiffs, should be “the scheduled date of completion” in the supply contract of this case, “the scheduled date of initial occupancy” shall be “the date of completion of construction,” and “the scheduled date of initial occupancy” in the said new supply contract shall be “the two-month period from the following date,” and the right of rescission stipulated in Article 11(3) subparag. 3 of the said supply contract of this case shall be “the scheduled date of initial occupancy into the supply contract of this case,” and “the scheduled date of initial occupancy into the supply contract of this case shall be “the date of cancellation at which Plaintiff 28181 delivered from April 2818, respectively.

E) Ultimately, it is difficult to accept the Plaintiffs’ assertion in some forms.

3) Sub-decisions

Therefore, the plaintiffs' claim against the defendant C is without merit.

3. Determination as to the claim against Defendant D

The reasons why this court should be stated in this part are as follows: (a) excluding the above 2.b.(4) "No. 9 of the judgment of the court of first instance" to "No. 2.b.(4)" to "No. 9 of the judgment of the court of first instance," and (b) excluding the above 2.b.(b)" to "decision on the claim against Defendant D" (No. 8, No. 17 through No. 10 of the judgment of the court of first instance)" to be identical to the part of the judgment of the court of first instance; and (b) citing this as it is, it

4. Conclusion

Therefore, the plaintiffs' claims against the defendants are without merit, and all of them must be dismissed. Since the judgment of the court of first instance is justified with this conclusion, the plaintiffs' appeals against the defendants are without merit. Accordingly, all appeals against the defendants are dismissed. It is so decided as per Disposition.

Judges or Mine Bureau

Judges Thai-tae