(영문) 서울고등법원 2013.2.22.선고 2012나56285 판결

1. The part against the defendant in the judgment of the court of first instance shall be revoked, and the plaintiff's claim corresponding to the above part shall be dismissed;

2. All costs of the lawsuit shall be borne by the Plaintiff.

Purport of claim and appeal

1. Purport of claim

The defendant shall pay to the plaintiff 107,480,00 won with 5% interest per annum from October 21, 2005 to August 20, 2008, and 20% interest per annum from the next day to the day of full payment.

2. Purport of appeal

The part of the judgment of the first instance against the defendant shall be revoked, and the plaintiff's claim corresponding to the above revocation shall be dismissed.

Reasons

1. Basic facts

A. Conclusion, etc. of the instant agreement

(1) On June 29, 2004, Specialized Construction Co., Ltd. 1) entered into a business agreement with the defendant, who is a trust company, (hereinafter referred to as the "first business agreement of this case") with the defendant (hereinafter referred to as "the first business agreement of this case"), the main content of the first business agreement of this case is as shown in attached Form 1.

(2) Article 4(3) of the first business agreement of this case provides that the defendant shall conclude a security trust contract and an agency contract as an individual contract. Accordingly, on June 29, 2004, the case and the defendant shall make the business site of this case as trust real estate, make the priority beneficiary as trust real estate, and enter into a real estate security trust contract (hereinafter referred to as the "first business trust contract of this case") with the content that the beneficiary and debtor shall be the beneficiary and debtor shall be the beneficiary and the first business trust contract of this case. On the same day, the defendant entered into an agency contract (hereinafter referred to as the "first business contract of this case"). The main contents of the first trust contract of this case are as stated in attached Form 2, and the main contents of the first agency contract of this case are as stated in attached Form 3.

(3) After the financial institution loaning project costs changed from green life insurance to Korea Mutual Savings Bank, Promotion Mutual Savings Bank, Gyeonggi Mutual Savings Bank, 10, etc., it concluded a business agreement (hereinafter referred to as “instant secondary business agreement”) with the defendant, identity comprehensive development, and Puan Mutual Savings Bank, etc. on May 11, 2005. The main contents of the instant secondary business agreement are as shown in Appendix 4.

(4) Article 5(1) of the Business Agreement of this case provides that the beneficiary and the debtor shall conclude a real estate security trust agreement (disposal trust) and an agent contract. Accordingly, on May 13, 2005, the defendant and the defendant entered into a contract of proxy (hereinafter referred to as "the second agent contract of this case") with the content that the defendant is entrusted with the management of funds, etc. from Pyeongtaek Sejong case, and on August 11, 2005, the trust real estate of this case shall be divided into 12 sections except 101 units among the commercial buildings of this case, and the beneficiary and the debtor shall be the Korea Mutual Saving Bank, etc., and the first beneficiary shall be the Korea Mutual Saving Bank, etc., and the real estate security trust agreement of this case (hereinafter referred to as "the second trust contract of this case"). The main content of the trust contract of this case shall be as stated in attached Form 5, and the content of the second agent contract of this case shall be as stated in attached Form 6.

B. Conclusion and cancellation of the Plaintiff’s sales contract

(1) On February 16, 2004, the Plaintiff entered into a contract 111No. 106 No. 13 of the instant commercial building with the amount of KRW 134,417,68, and paid the sum of the down payment and the intermediate payment until August 13, 2004 pursuant to the said sales contract.

(2) After the conclusion of the instant sales contract at Suwon District Court, the Plaintiff filed a lawsuit seeking the cancellation of the sales contract and the return of the sales price on the ground that the Plaintiff failed to implement the said special agreement, even though the Plaintiff set the sales price higher than that of other Dongs, established a large-scale entrance allowing vehicle access between 110 dong and 111 dong commercial buildings in the instant sales contract, and the Plaintiff set up a special agreement on the installation of a large-scale ground parking lot allowing vehicle parking 200 vehicles in front of the store that sold in lots.

(3) The plaintiff was sentenced to a judgment against the court of first instance in the above case, but appealed on August 20, 2008, and "Seoul High Court 2007Na35536" was decided in favor of the plaintiff about 5% per annum from October 21, 2005 to August 20, 2008 and 20% per annum from the next day to the date of full payment." The above judgment became final and conclusive as is.

[Reasons for Recognition] Facts without dispute, Gap evidence 1, Gap evidence 2-1, Gap evidence 2-2, Gap evidence 3, 4, 5, Eul evidence 1, Eul evidence 2-1, 2, Eul evidence 3, Eul evidence 4-1 and Eul evidence 4-2, and the purport of the whole pleadings; 2. Determination as to this safety defense

With respect to the plaintiff's lawsuit of this case against the plaintiff who exercised the right to return the sale price for the defendant in subrogation of the ordinary spacing case as the creditor of the ordinary spacing case, the defendant asserts that the lawsuit of this case should be dismissed as there is no proof that the ordinary spacing case is insolvent. Therefore, according to the records, it can be known that the confession was established by the defendant's statement that the plaintiff's assertion that the ordinary spacing case is insolvent at the second spacing date of May 3, 2012, which was open on May 3, 2012, as well as the whole purport of the pleading in the statement in the evidence No. 15, and No. 5, it can be recognized that the ordinary spacing case is insolvent as of the date of the closing of argument of this case. Thus, the defendant's above safety defense cannot be seen as any part of the arguments.

3. Judgment on the merits

A. The plaintiff's assertion

For the following reasons, the Plaintiff asserts that the Defendant is obligated to refund KRW 107,480,000, which was already paid by the Plaintiff in connection with the instant sales contract for the instant case to Pyeongtaek Jong-si.

(1) If the sales contract becomes null and void, if the Defendant does not return the sales price received from the gold management account in its name to the ordinary sea scam, the buyer will retain the sales price received from the gold management account in his name while he lost his status as the buyer with respect to the commercial buildings in this case, and the sales price received as above in addition to the commercial buildings in this case itself would result in an unfair result that remains as trust property. Therefore, in a case where the sales contract concluded between the ordinary sea scam and the buyer loses its validity retroactively, the Defendant’s agent will be legally free to receive and manage the sales price, and the ordinary sea scamscamscamscamscamscamscam to demand the Defendant who received the sales price on his behalf to return it.

(2) Even if the instant agency contract is valid notwithstanding the cancellation of the sales contract between the Plaintiff and Pyeongtaek-si case, since the instant store that the Plaintiff bought in lots had already been transferred to another person according to the procedures for compulsory auction on October 4, 2011, the trust of the instant store was terminated. Thus, the sales price should be preferentially refunded to the Plaintiff, such as Supreme Court Decision 2008Da19034 Decided October 4, 201. Thus, the Defendant should pay the sales price to the Plaintiff who subrogated for Pyeongtaek-si case.

B. Determination

(1) Judgment on the Plaintiff’s first assertion

(A) Each business agreement of this case constitutes a basic contract which determines the role of each of the parties in the project of this case as well as the defendant who is a trust company as well as the loan financial institution and the public corporation. Each of the trust contracts of this case and each of the agency contracts of this case has the nature of individual contracts entered into between the defendant, based on each of the business agreements of this case. The purpose of each of the trust contracts of this case (Article 1), the timing of disposal of trust real estate (Article 17), the method of disposal (Article 18), the method of settlement of disposal of disposal proceeds (Article 21). In light of the provisions of each of the trust contracts of this case (Article 3), the trust contracts of this case are to be executed by the defendant for the purpose of preserving and managing the trust real estate of this case as the principal beneficiary (a financial institution, etc.) and the purpose of sale contracts of this case to secure the repayment of debts to the trust administrator of this case, and the purpose of sale contracts of this case as the principal beneficiary of each of the trust contracts of this case.

As above, each of the trust contracts of this case is concluded as "the purpose of collateral security", and each of the trust contracts of this case sets the disposal entity of real estate in trust as defendant, while each of the contracts of this case sets the selling entity of the commercial building of this case as usual settlement case. In full view of all of the contents of the provisions of Articles 17, 18, and 21 of each of the trust contracts of this case, the sale price that the defendant receives under each of the contracts of this case based on the sales contract between the buyers and the buyer shall not be deemed to fall under "the disposal price of the real estate of this case" as provided in Article 4 of each of the trust contracts of this case, or "the equivalent price for the sale of the real estate of this case" (or "the agency contract of this case as usual settlement case" was concluded with "A", and the trust contract of this case is not entrusted with "A" which becomes the object of receiving the sale price under the agency contract of this case, and this legal principle applies to the case where the sales price of this case is the same as the trust contract of defendant 17).

Ultimately, on the premise that the sale price is included in the trust property stipulated in Article 4 of each trust contract of this case, the plaintiff's assertion that if the sale price becomes invalidated, if the defendant does not return the sale price to the commercial building of this case, the sale price received as above in addition to the commercial building of this case would result in an unfair result remaining as trust property (in addition, the plaintiff's above assertion remains at the time of cancellation of the sale contract. However, in the case of a large real estate development project such as the business of this case, it is premised on the fact that the sale price remains as it remains at the time of the cancellation of the sale contract. However, in the case of a large real estate development project such as the business of this case, the land purchase and new construction work are conducted as the main source of funds borrowed from the lending financial institution and the sale price received from the buyer, and accordingly, the trust real estate like the commercial building of this case is formed, so the above argument that the sale price remains as trust property, along with the commercial building of this case, cannot accept

(B) Even if the contract for sale in lots was cancelled and becomes retroactively null and void due to the cancellation of the contract between the buyer and the buyer, it is merely impossible for the defendant to receive the sale price any longer from the buyer of the contract for sale in lots, as the contract for sale in lots was no longer received from the buyer of the contract for sale in question, and it cannot be viewed that there is no legal ground for the defendant to receive and manage the sale price already received from the buyer of the contract for sale in lots. On the other hand, the plaintiff's assertion that the contract for sale in lots is no longer effective for the defendant to claim the return of the sale price in lots from the buyer of the contract for sale in question without any specific circumstance such as the agreement on the return of the sale price in lots between the buyer and the buyer. It cannot be viewed that the contract for sale in lots was no longer effective for the defendant to claim the return of the sale price in lots in question from the buyer of the contract for sale in lots in question from the buyer of the contract for sale in question (or the defendant to claim the return of the sale price in lots in lots in lots in lots from the defendant.)

(2) Judgment on the second assertion by the Plaintiff

Even if the store of this case, which the plaintiff purchased in accordance with the sale contract of this case, was sold in accordance with the compulsory auction procedure, the sale price is only distributed in accordance with the order of priority in the auction procedure, and it cannot be deemed that the defendant is obligated to pay the sale price itself to the plaintiff for a fair settlement so that the sale price can be returned to the plaintiff only on account of the circumstances as asserted by the plaintiff (the Supreme Court Decision 2008Da19034 Decided the basis thereof is different from the case and thus cannot be invoked in this case). The second argument by the plaintiff cannot be accepted.

4. Conclusion

Therefore, the plaintiff's claim of this case is dismissed due to the lack of reason, and since the part against the defendant in the judgment of the court of first instance against the defendant is unfair, it shall be revoked, and the plaintiff's claim corresponding to the above revoked part shall be dismissed. It is so decided as per Disposition.

Judges

Mobilization by the presiding judge

Judges Mok-si

Judges Kim Jong-chul

Note tin

1) hereinafter referred to as “pary sea species.”

2) hereinafter referred to as “instant project site”.

(iii) 11 sales facilities and 2 business support facilities; and

4) hereinafter referred to as “instant commercial building.”

5) The project of this case is hereinafter referred to as "the project of this case").

6) hereinafter referred to as "comprehensive development of new sources".

7) hereinafter referred to as "green life insurance".

8) It is hereinafter referred to as "Mau Mutual Savings Bank."

9) At the time, at the time, the company was a multi-real estate trust, which was changed to the current trade name on March 25, 2010.

10) In total, three companies which are financial institutions lending project costs, "Korea Mutual Savings Bank, etc.".

11) On May 18, 2005, written evidence Nos. 2-2, 2005, written evidence No. 2-2, appears to have been written in writing on May 5, 2005, 13.

12) On June 26, 2006, a change contract was concluded with the content that designates the comprehensive development of the identity of a contractor as the second priority beneficiary.

13) hereinafter referred to as “instant store”).

14) hereinafter referred to as “instant sales contract.”

15) Considering the Defendant’s assertion on the withdrawal of confession, there is no evidence to acknowledge that the Defendant’s confession was contrary to the truth and due to mistake, and thus, it cannot be deemed that the Defendant’s confession was lawfully revoked.

16) Article 3 subparag. 1 of the instant business agreement shall apply to the parties involved in the sales contract in accordance with the provisions of Article 14 of the instant agency contract. Moreover, Article 18 of the instant agency contract or Article 19 of the instant second business agreement shall apply to the method of executing project costs in accordance with the provisions of Article 14 of the instant agency contract.

17) In the case of a financial institution granting a status as a priority beneficiary pursuant to a trust contract, the effect of the preferential right to benefit does not directly affect the sale price. However, in the case of a financial institution granting a status as a priority beneficiary pursuant to a trust contract, the preferential beneficiary may agree to terminate the trust of the subject-matter in question, i.e., the termination of the trust of the subject-matter in question (if the claim is not repaid with the sale price, the financial institution granting a loan may continue to hold a security for the claim by refusing to give consent to the termination of the trust despite the sale contract). This is only the result that the first beneficiary consents to the termination of the trust, depending on the fulfillment of the purpose of acquiring the preferential right to benefit (the purpose of securing the collection of claim) in relation to the real estate in question. Therefore, the sale price itself cannot be viewed as a trust property

Attached Form

A person shall be appointed.

심급 사건

-수원지방법원 안산지원 2012.5.24.선고 2011가합4534

서울고등법원 2013.2.22.선고 2012나56285

-대법원 2015.1.15.선고 2013다26838

참조판례

-수원지방법원 안산지원 2012.5.24.선고 2011가합4534 판결

유사 판례

-서울고등법원 2012.07.06 2011나105128

-수원지방법원 안산지원 2012.5.24.선고 2011가합4534 판결

-서울고등법원 2015.05.28 2014나729

-서울중앙지방법원 2013. 8. 14. 선고 2012나46537 판결