Seohae General Construction Co., Ltd. (Law Firm Woop, Attorney Han-sik et al., Counsel for the plaintiff-appellant)

Ronam District Land Readjustment Project Association (Law Firm Dongdong, Attorneys Ahn Chang-ho et al., Counsel for the plaintiff-appellant)

September 28, 2005

1. The defendant shall pay to the plaintiff 9,221,70,000 won with 5% interest per annum from October 28, 2004 to October 26, 2005, and 20% interest per annum from October 27, 2005 to the day of full payment.

2. The plaintiff's remaining claims are dismissed.

3. The costs of lawsuit shall be borne by the defendant.

4. Paragraph 1 can be provisionally executed.

The defendant shall pay to the plaintiff 9,221,71,00 won with 5% interest per annum from October 28, 2004 to the service date of a duplicate of the complaint of this case, and 20% interest per annum from the next day to the day of complete payment.

1. Basic facts

The following facts are not disputed between the parties, or can be acknowledged by comprehensively taking into account the whole purport of arguments in the statements in Gap evidence 1 through Gap evidence 3, evidence 1, evidence 4-1, evidence 5, evidence 6, evidence 9 through evidence 12, evidence 1, evidence 3 through evidence 5, evidence 6-2 through 4, evidence 7, evidence 8-1, evidence 1, evidence 14-1, 2, and evidence 15-1 through 3:

A. The Plaintiff (hereinafter “Plaintiff”) is a company operating a housing construction business, etc., and the Defendant (hereinafter “Defendant Cooperative”) is a company designated by Jung-gu, Jung-gu, Incheon as a land readjustment project district in around 1998, the land owners of the project district were designated as the land owner of the project district for a land readjustment project, and was designated as the land owner of the project district for a land readjustment project, and completed the registration of incorporation of the corporation on July 13, 2002.

B. On August 22, 2003, in order to sell apartment houses, including apartment houses, on the condition that apartment houses are newly constructed on the land allotted by the authorities in recompense for development outlay 80,223.5 square meters in the project district (hereinafter “instant land allotted by the Defendant Mutual Aid Association”), the Defendant Mutual Aid Association issued a notice on August 22, 2003 for the selection of an agent for the implementation of the land readjustment project in the Southern District through a daily newspaper. On August 27, 2003, the Defendant Mutual Aid Association held a project explanation meeting for the selection of an agent for the 10 companies, including the Plaintiff Company wishing to purchase the instant land allotted by the authorities in recompense for development outlay, held a competitive bidding for the selection of the agent, and submitted an application for the qualification examination to the Plaintiff Mutual Aid Association.

C. Meanwhile, the Plaintiff Company presented bid price at KRW 46,108,50,000 in the participation in the tender as above. Moreover, on August 29, 2003, the Plaintiff Company paid to the Defendant Cooperative KRW 4,610,850,000 equivalent to the bid price at KRW 10% of the bid price. The Plaintiff Company and the two remaining companies participating in the tender did not pay the bid bond at all.

D. On September 4, 2003, the Defendant Union held the sixth representative meeting to select the Plaintiff Company as an executive agent and made a resolution to sell the instant land allotted by the Plaintiff Company (hereinafter “instant resolution”). Accordingly, on September 9, 2003, the Plaintiff Company entered into a sales contract and business participation agreement with the Plaintiff Company on the land allotted by the authorities in recompense for development outlay (hereinafter “instant contract”) and the main contents are as follows.

Article 2 (Terms and Conditions of Contracts)

(1) The size of land allotted by the Plaintiff Company to purchase shall be approximately 80,223.5 square meters, and the amount shall be settled by the land substitution area authorized by the relevant administrative agency.

(2) In principle, the purchase and sale price of land allotted by the authorities in recompense for development outlay shall be 46,108,500,000 won and the total actual sale price shall be calculated by multiplying the finalized area authorized for replotting in the future by the ordinary unit

③ When the Plaintiff Company participates in a bid, KRW 4,610,850,000 shall be converted to the contract deposit of land secured for recompense of development outlay and reverted to the Defendant.

(4) Where necessary to conduct business of a defendant's association, part payments of land allotted by the authorities in recompense for development outlay may be paid to the defendant's association in the form of part payments, and any balance shall be paid within six months after the land substitution is determined.

(6) The time of use of land allotted by the authorities in recompense for development outlay shall be the end of May 2004: Provided, That it shall not mean the use of land completely suspended, but means the use necessary for the plaintiff company to undertake housing projects.

7. After the conclusion of this contract, the defendant union shall ensure that no defects, such as a limited real right (provisional disposition, seizure, provisional seizure, superficies, and establishment of a collateral security), have occurred in the relevant housing site, and shall without delay take procedures for cancellation or termination, and shall not interfere with the business schedule of the plaintiff union (only the recovery period from the defendant union shall not exceed September 2004).

Article 3 (Cancellation of Contracts)

Both parties shall endeavor to do their best to prevent any disruptions to the land readjustment project and the joint housing construction project of the Plaintiff Company, and if any of the following causes occurs, the other party may rescind the said contract without any separate notification procedure:

(1) Where it is evident that the project is unable to progress due to a cause attributable to one party.

(3) Where there is an obvious reason to perform the above contract.

(4) Compensation for cancellation of a contract shall, in principle, be:

(a) In the case of cancellation due to the reasons of the Defendant Union, the amount of the down payment received shall be compensated for.

B. When cancellation is made due to the reasons of the Plaintiff Company, any nominal compensation, including down payment and interest, may not be claimed against the Defendant Association.

D. Article 2(1) of the Act provides that if the use of land allotted by the authorities in recompense for development outlay is not fulfilled, the above contract shall be automatically terminated. In this case, the defendant association shall not oppose any reason and cause, and shall compensate the plaintiff company for a double of the down payment.

Article 11 (Matters of Special Agreement)

(1) With respect to legal disputes arising from the termination of the contract of the previous land allotted by the authorities in recompense for development outlay, Co., Ltd., the purchaser of the previous land allotted by the authorities in recompense for development outlay, the plaintiff company shall actively

E. However, on December 30, 2003 and January 3, 2004, the Defendant Cooperative sent a certificate of content to the Plaintiff Company, and notified the Plaintiff Company of the cancellation of the contract on the ground that there was a defect in entering into the contract of this case, such as submitting a written application for the qualification examination of project performance capabilities to the effect that the Plaintiff Company would not be responsible for the statutory loss portion due to algs of the previous implementing company, unlike other companies at the time of bidding to select the implementing agent.

F. Since then, until September 2004, the Defendant Union did not entirely perform its obligations under the instant contract, including the delivery of land allotted by the authorities in recompense for development outlay. Accordingly, on October 22, 2004, the Plaintiff Company notified the Defendant Union that the Defendant Union did not deliver the instant land allotted by the end of May 22, 2004 or the end of September 2004, which is the date of the agreement on the delivery of land, and that it did not act contrary to the good faith, such as claiming the invalidity of the instant contract, and provided notification to the Defendant Union around that time.

2. Determination as to the cause of action

A. Cancellation of the instant contract

According to the above facts, even before receiving the intermediate payment and the balance from the Plaintiff Company, the Defendant Union failed to comply with the obligation to deliver the instant land allotted by the recompense for development outlay to the Plaintiff Company by the end of May 2004 or the end of September 2004, and make it available to the Plaintiff Company. As such, upon the arrival of the above period, the instant contract was automatically rescinded pursuant to the main sentence of Article 3(4)(d) of the instant contract, or at least after the Defendant Union explicitly expressed its intent to refuse the contract, it was legally rescinded by notifying the Defendant Union of the rescission of the contract.

B. Reinstatement and establishment of liability for damages

Therefore, the defendant union is obligated to return unjust enrichment of KRW 4,610,850,00, which is equivalent to the down payment, to the plaintiff company as restitution following the cancellation of contract. In addition, according to Article 3(4) of the contract of this case, where the contract is terminated due to the reasons attributable to the plaintiff company, the plaintiff company cannot claim the return of the down payment to the defendant union, and where the contract is terminated due to the reasons attributable to the defendant union, the defendant union is obligated to compensate the plaintiff company for the double amount of the down payment. This is presumed to have been estimated as liquidated damages, unless there are special circumstances, as the contract of the contract of the contract for the breach of the obligation of the parties to the contract, and therefore, the defendant union is obligated to pay the plaintiff company the down payment amount of KRW 9,221,70,000 (=4,610,850,000) and damages for delay (the plaintiff shall claim the payment of the down payment amount equivalent to the down payment amount, and shall be deemed to include both unjust enrichment and damages equivalent to the same amount).

3. Judgment on the assertion of the defendant union

A. As to the assertion that no legitimate resolution was passed by the general assembly or the board of representatives

(1) The argument

(A) In order to effectively dispose of the land allotted by the Defendant Cooperative, the Defendant Cooperative must undergo a resolution at the general meeting of its members or the board of representatives, and there is no fact that the Defendant Cooperative underwent the general meeting of its members.

(B) Although the defendant union held the 6th council meeting on September 4, 2003 and passed a resolution to select the plaintiff company as an agent, the above board of representatives held without complying with the convocation notice procedure stipulated by the articles of association and held it illegal. ② Among 36 representatives who participated in the above resolution, 2 representatives, including 1, 7, etc. (hereinafter "the non-party 1, etc.") have lost their status as partners by selling their own land within the business district and losing their status as partners. The 16 representatives as listed in attached Table 1 of attached Table 1 (hereinafter "non-party 2, etc.") selected by the 2nd council of representatives, who were appointed by the 2nd council of representatives, cannot be recognized as being the representative status as invalid because the resolution to appoint the 16th council of representatives cannot be recognized as being invalid because the number of true representatives who participated in the resolution in this case falls short of the quorum of 18, and thus, the resolution in this case does not reach a quorum or a quorum.

(C) If so, the instant contract for the disposal of the land allotted by the authorities in recompense for development outlay was concluded without the due resolution of the general meeting of the union members or the board of representatives, and thus becomes null and void. Accordingly, the Plaintiff’s claim based on the premise that the instant contract was effective and has been rescinded later due to the Defendant’

(2) Determination

(A) According to Articles 26 subparag. 8 and 26 subparag. 9 of the former Land Readjustment Project Act, which applies to the land readjustment project of this case (amended by Act No. 6252 of Jan. 28, 200; hereinafter the "Land Readjustment Project Act"), the disposal method of land allotted by the authorities in recompense for development outlay and other matters prescribed by the articles of association shall be decided by the general meeting of the union members. According to the evidence No. 1, Article 21 subparag. 8 of the articles of association of the defendant association, the disposal method of land allotted by the authorities in recompense for development outlay should be decided by the general meeting of the union members. On the other hand, according to Article 27 subparag. 3 of the Land Readjustment Projects Act, Article 18 of the Enforcement Decree of the same Act and Article 27 subparag. 18 of the Land Readjustment Project Act, the board of representatives may exercise the authority of the general meeting of the union members to decide the disposal method of land allotted by the authorities in recompense for development outlay for development outlay for development outlay for 20.

(B) However, there is no dispute between the parties as to the fact that the defendant union did not undergo a general meeting of the union members in concluding the contract of this case. Accordingly, in the case of this case, the issue is whether the resolution of this case at the sixth representative meeting, which decided to sell the land allotted by the plaintiff company to the plaintiff company, is legitimate and valid.

(C) First, according to the statement of the defendant's assertion that the above sixth representative meeting was held without complying with the notice of convening a meeting under the articles of association, the articles of association of the defendant's association stipulate that the meeting place, date, time, and meeting shall be notified in writing five days before the meeting is held, but there is no evidence to acknowledge the fact that the defendant's association held the above sixth representative meeting in violation of the above notice of convening a meeting. This part of the defendant's association's assertion is groundless.

(D) Next, from among 36 representatives who participated in the above resolution, two persons, including Nonparty 1, etc., were disqualified as representatives because they sold their own land in the business district and lost their status as partners. The 16 persons, including Nonparty 2, etc., appointed by the 2nd council of representatives, who were appointed by the 2nd council of representatives, cannot be recognized as representatives due to invalid relation because the resolution on appointment of the 2nd council of representatives did not constitute a quorum. This part of the allegation is without merit as set forth below.

① There is no evidence to acknowledge the assertion that two persons, such as Nonparty 1, etc. sell their own land within a project district and lose their status as a partner.

② According to the evidence No. 1, No. 10-1 through No. 12-4, No. 15-1 through No. 3, respectively, the articles of association of the defendant association provides that the defendant association may appoint new officers or representatives due to the resignation or dismissal of officers, representatives, etc., by the resolution of the board of representatives under Article 23. Article 24(2) and (5) provides that the number of members of the board of representatives shall be more than the majority of the number of incumbent members, and that the resolution shall be made with the consent of a majority of the number of members present; the defendant association shall be entitled to delegate the voting rights to other representatives; the defendant association shall have the qualifications of at least 43 representatives; the 2nd meeting shall be convened on Aug. 2, 2003 and the 16th meeting shall be adopted with the consent of at least 16 representatives, including the above 39 voting rights of the remaining 2nd meeting and the 2nd meeting shall be approved with the consent of at least 25 voting rights of the 2nd representatives.

B. As to the assertion that the instant contract is invalid since the selection of the successful bidder is invalid

(1) The argument

(A) The Defendant Union made it clear that the selection of the successful bidder should be invalidated in the bidding process for the sale of land allotted by the authorities in recompense for development outlay in the public notice of the bid, if there is any illegality in the process of false or selection of documents, and the participant in the bidding promised to accept all of the legal loss portion of the Defendant Union due to the calkylgraphs, the transfer agent, to enter this content in the application for

(B) Nevertheless, at the time of responding to the above bidding on August 27, 2003, the Plaintiff filed a false application for the qualification examination of project performance capabilities in addition to the proviso that the Defendant union cannot be held liable for the part of the statutory loss that the Defendant union may incur in the future at the time of responding to the bidding. In addition, in collusion with Nonparty 3, the head of the Defendant union, at the time of the Defendant union, added contingent liability to the bidding condition that the bidding participant will take over the Defendant union's clicks, thereby causing a fraudulent act, such as inducing the waiver of the bidding, making a single bid.

(C) If so, the selection of a successful bidder for the Plaintiff Company is invalid because it falls under the case where a false document was submitted or a fraudulent document was rejected in the selection process, and the contract of this case entered into based on it is also null and void.

(2) Determination

(1) According to the statement No. 9-1, the plaintiff company filed an application for the examination of project performance capabilities, in addition to the proviso that it shall not be responsible for the portion of statutory losses incurred by the defendant union's salkis at the time of responding to the bidding for sale of the land allotted by the recompense for development outlay on August 27, 2003. However, it is natural for the plaintiff company to prepare and submit the above application for the examination of project performance capabilities as it is in fact unless the plaintiff company has the intent to assume responsibility for the portion of statutory losses incurred by the defendant union's salkis, and the contents of the documents cannot be "false" ( even if the defendant company participated in the bidding had the defendant union enter the contents in the application for the examination of project performance capabilities to accept the statutory loss portion due to salkis, it shall be deemed the responsibility of the defendant union to verify the contents of the application for the examination and select the substitute execution.) There is no evidence to prove that the plaintiff company submitted false or false documents.

(2) In addition, there is no evidence to acknowledge the allegation that the Plaintiff Company committed an unlawful act by adding the bidding condition to the bidding participants the contingent liability for the algloids of the Defendant Union in collusion with Nonparty 3, who was the president of the Defendant Union at the time of the Defendant Union in order to induce the competitors to waive the bidding.

(3) Therefore, this part of the claim by the Defendant Union is without merit to examine the remainder.

4. Restoration and scope of compensation for damage.

(a) Whether the estimated amount of damage compensation is unreasonably excessive;

According to Article 398(2) of the Civil Act, "Where the estimated amount of compensation for damages is excessive, the court may reduce it to a reasonable level." The term "unfairly excessive cases" refers to cases where it is deemed that the payment of the estimated amount would result in the loss of fairness by giving unreasonable pressure to the debtor who is in the position of the economically weak in light of the general social norms such as the obligee and the obligor's respective position, purpose and contents of the contract, the anticipated motive for the amount of compensation, the estimated amount of compensation for damages, the estimated amount of damages, the size of the estimated amount of damages, and the transaction practices at the time, etc. In light of the above general social norms, it should be deemed that the company did not unilaterally lose the obligation to redeem the estimated amount of compensation for the above case from the date of the above 2002Da73852, Dec. 10, 2004, which would have been unreasonable since the date of the above 3-year contract cancellation, as seen earlier, for the reasons attributable to the plaintiff association's new 10-years tender agreement.

B. Sub-determination

Therefore, the defendant association is obligated to pay KRW 9,221,711,00,00 (the plaintiff company's claim as a penalty, while it appears to be due to an obvious misunderstanding, and there is no right to seek payment of KRW 11,00,00,00,00, which is the sum of KRW 4,610,850,000 for unjust enrichment and KRW 4,610,850,000 for damages, which is the sum of KRW 9,221,70,000 for damages (the plaintiff company's claim as a penalty). This is deemed to be due to an obvious misunderstanding, and there is no right to seek payment for the amount exceeding an amount equivalent to the sum of the down payment, which is 11,000,000,000 for the above unjust enrichment, from the day after September 9, 203, which is the contract date in which the plaintiff association received bid deposit and converted it to the down payment, to the extent of 2005% per annum from the plaintiff association.

5. Conclusion

Therefore, the plaintiff's claim against the defendant is justified within the scope of the above recognition, and the remaining claim is dismissed as it is without merit. It is so decided as per Disposition.

[Attachment]

Judges Choi Jong-won (Presiding Judge)