신탁수익금 반환 청구
The appeal is dismissed.
The costs of appeal are assessed against the Plaintiff.
The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).
1. According to the reasoning of the lower judgment and the record, the following facts are revealed.
On June 26, 2012, the Plaintiff entrusted the business site to the Defendant with respect to the business of constructing and selling multi-family housing (hereinafter “instant business”) between the Defendant and the north-gu Seoul District Office of Port, and concluded a land trust contract for the sale-type land (hereinafter “instant trust contract”) that constructs and sells multi-family housing.
On the same day, the Plaintiff entered into a consulting service contract with the Defendant for KRW 500 million (hereinafter “instant consulting contract”) regarding the instant project, and the Defendant was to perform duties, such as the establishment of a development district map, the selection of a contractor, and the feasibility analysis.
The Plaintiff paid KRW 10 million to the Defendant as part of the instant consulting contract.
B. After the completion of the instant project, the Defendant notified the Plaintiff of the following offset on March 15, 2017.
Since the Defendant completed the instant consulting contract, the Plaintiff is obligated to pay to the Defendant KRW 490 million, excluding the down payment of KRW 10 million, which was already paid, out of KRW 500 million, to the Defendant.
The defendant's claim of KRW 490 million against the plaintiff shall be offset against the plaintiff's claim of return of trust proceeds against the defendant by using the defendant's automatic claim of service payment amounting to KRW 490 million.
2. Whether the instant consulting contract is null and void (Ground of appeal No. 1)
A. The lower court rejected the Plaintiff’s assertion on the ground that the instant consulting contract is null and void, seeking the payment of trust proceeds under the instant trust contract and the return of the down payment paid under the instant consulting contract, on the following grounds.
Considering the purpose of the instant consulting agreement and the scope of the Defendant’s business, most of the Defendant’s business under the consulting agreement should be performed before entering into the instant trust agreement.