2016Gahap35727 Sales proceeds

Ma-○

Cheongju-si, Seowon-gu

Law Firm Subdivision, Attorney Park Jong-soo

Attorney Park Young-chul, Counsel for the plaintiff

1. ○○;

Seoul Eunpyeong-gu

Law Firm Cheong-hoon, Counsel for the plaintiff-appellant

Attorney Lee Dong-hwan

2. Kim○-○

Mag-gu, Young-si

Dog-gu at the place of service;

Law Firm Lee & Lee, Counsel for the plaintiff-appellant

[Defendant-Appellant]

July 6, 2017

August 10, 2017

1. The plaintiff's action against ○○○ is dismissed.

2. Defendant Kim Jong-○ shall pay to the Plaintiff 390,00,000 won, and 5% per annum from July 4, 2009 to September 9, 2016, and 15% per annum from the next day to the day of full payment.

3. Of the costs of lawsuit, the part arising between the Plaintiff and Defendant Lee ○○ is borne by the Plaintiff, and the part arising between the Plaintiff and Defendant Kim ○○ is borne by the Defendant Kim○○.

4. Paragraph 2 can be provisionally executed.

The plaintiff, the defendant Lee Dong-○, 440, 000, 000, and the defendant Kim Kim-○, jointly and severally with the defendant Lee Dong-○.

On July 4, 2009, the delivery date of a copy of the complaint of this case from July 4, 2009 to KRW 390,000,00, and each of the above amounts.

Until the date of full payment, 5% per annum and 15% per annum from the following day to the date of full payment.

D. D. D. D.

1. Facts of recognition;

A. On April 10, 2008, the plaintiff purchased a certificate of origin (hereinafter referred to as "the land of this case") from ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○, 332, 332, and constructed a new building on the ground.

Defendant ○○ sold the instant land and a building under construction (hereinafter referred to as “instant sales contract”). Defendant ○○ paid KRW 20 million on September 30, 2008, KRW 130 million on October 1, 2008, KRW 160 million on January 1, 2009, and KRW 310 million on January 1, 2009, KRW 310 million on the purchase price to the Plaintiff. The details relating to the instant sales contract are as follows.

부동산매매계약서1. 부동산의 표시충청북도 청주시 흥덕구 OO동 OOOO 번지2. 계약내용매매대금 일십이억삼천만원정 ( ₩1, 230, 000, 000 )계약금 오천만원잔금 일십일억팔천만 ( 보증금 + 융자금 )융자금 육억구천만원정 ( 새마을금고은행 ) 을 승계키로 한다임대보증금 이억삼천만원정을 승계키로 한다 . 나. 원고는 2008. 10. 1. 위 건물에 관하여 건축관계자를 피고 이○○으로 하는 건축관계자 변경신고를 하였고, 피고 이○○은 2008. 10. 24. 완공된 건물 ( 이하 ' 이 사건 건물 ' 이라 한다, 이 사건 토지와 이 사건 건물을 합하여 ' 이 사건 부동산 ' 이라 한다 ) 에 관하여 건축물 사용승인을 받았으며, 2008. 11. 4. 소유권보존등기를 마쳤고, 이 사건 토지에 관하여 2009. 7. 3. 박○○의 명의에서 피고 이○○으로 소유권이전등기가 경료되었다 .

C. On January 1, 2009 and June 29, 2009, the Plaintiff prepared and executed a written confirmation related to the instant sales contract to Defendant ○○○. The content of each of the instant written confirmation is as follows.

On January 1, 2009, the plaintiff confirmed the following matters to 00,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,0000,0000,000,0000,000,0000,000,000,0000,000,000,0000,000,0000,000,000,000,0000,000,000,000,000,000,000,000,00,00.

On January 1, 2009, while acting as a broker for the instant sales contract, a loan certificate was prepared to pay to the Plaintiff KRW 3190,000,000,000,000 for the existing debt amount of KRW 44,440,000,000, excluding KRW 50,000,000,000 for the instant sales contract. Of the above loan certificate, the contents relating to the instant case are as follows.

현금차용증1. 차용금액 : 삼억구천만원정 ( ₩390, 000, 000원정 )2. 당사자채무자 : 피고 김○○채권자 : 원고상기 금액을 피고 김○○은 원고로부터 법정이자로 차용하였기에 정히 영수함 ( 상환방법은상호 협의한다 ) 2009년 3월 30일까지 이행하고 상기내용을 이행하지 않을시 모든 법적 책임을 진다 . [ 인정근거 ] 다툼 없는 사실, 갑 제1 내지 9, 12, 14 내지 16호증, 을가 제5 내지 9호증 , 제10호증의 1 ( 각 가지번호 포함 ), 을나 제1호증의 각 기재, 변론 전체의 취지

2. The plaintiff's assertion

The actual purchase price of the instant sales contract is KRW 1.67 billion. In order to reduce taxes, the sales price is KRW 1.23 billion in the instant sales contract. As such, Defendant Lee ○ is obligated to pay to the Plaintiff the remaining purchase price of KRW 440 million ( = 1.677 billion - KRW 1.23 billion - KRW 1.20 million).

In addition, as Defendant Kim ○ has acquired the obligations of Defendant Lee ○○ with respect to the instant sales contract, it is jointly and severally liable with Defendant Lee ○○○ to pay KRW 390 million out of the above KRW 440 million.

3. Determination on the main safety defense of Defendant OO

If there is an agreement not to file a lawsuit even if there is a dispute over a specific right or legal relationship, there is no benefit in the protection of rights (see Supreme Court Decision 2011Da80449, Nov. 28, 2013). In relation to the sales contract of this case, the plaintiff prepared a confirmation document stating that "the plaintiff confirmed that he will not be liable for any objection or civil or criminal liability in the future with respect to the sales amount of real estate in relation to the sales contract of this case", and that "the obligation based on the sales contract of this case was settled on Jun. 29, 2009," and that "any objection or criminal liability should be confirmed and confirmed not to be charged to ○○○○○," and this is clearly admitted that the plaintiff did not file a lawsuit against the contract of this case as a result of the agreement between the plaintiff and ○○, and therefore, it is unlawful for the plaintiff to pay the remaining payment of the purchase price of this case.

As to this, the Plaintiff’s agreement on an action is valid only when it can be anticipated at the time of the agreement. However, Defendant ○○○ expected to report the purchase price of KRW 1.23 billion to the tax office at the time of the preparation of the above written confirmation. However, Defendant ○○ did not expect that the actual purchase price of the instant sales contract was KRW 1.677 billion.0 billion. The Plaintiff’s lawsuit of this case is lawful on the ground that the agreement on an action was not a circumstance that could have been anticipated at the time of agreement. The Plaintiff’s assertion that the agreement on an action is not a circumstance that is likely to be anticipated, and that the agreement on an action of this case is not a legal ground for recognizing the payment of KRW 1.6 billion, considering the following circumstances, the Plaintiff’s assertion that the sales contract amount was KRW 1.23 billion,000,000,000,0000,000,000 won, which appears to have been 1.6 billion,000,000 won.

In addition, the Plaintiff’s agreement on the lawsuit is an agreement with Defendant ○○ on the condition of cancelling the report on the actual purchase price at the tax office. Defendant ○○○ was aware or could have known of it as an indication that is not a true intention, and it is against the good faith principle that even in the case of reporting the actual purchase price at the tax office, the agreement on the lawsuit of this case is valid. Thus, the Plaintiff’s lawsuit of this case is lawful, but there is no evidence to acknowledge it. Thus, the Plaintiff’s above assertion is without merit.

4. As seen in the judgment on the claim against Defendant Kim ○, as seen earlier, it cannot be acknowledged that Defendant Kim ○○ did not recognize the remaining payment obligation against the Plaintiff, and thus, Defendant Kim ○○ cannot be deemed to have acquired the Plaintiff’s obligation to pay the remaining payment amount of KRW 440 million to the Plaintiff. However, Defendant Kim ○, while mediating the instant sales contract, agreed to pay the Plaintiff KRW 390 million to the Plaintiff at KRW 440 million,000,000,000,000,000, excluding KRW 500,000,000,000,000,000,000,000 won, from the following day to the day of the instant sales contract. Defendant Kim ○ was obligated to pay the Plaintiff KRW 490,000,000 to the Plaintiff with the annual payment rate of KRW 50,000,000,000 from July 16, 2009.

As to this, Defendant Kim ○ alleged that the Plaintiff completed the registration of ownership transfer on 00,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,0000,000,000,000,0000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,00,00,00,00,00,00.

In addition, Defendant Kim ○, who claimed that the Plaintiff transferred the 50,000 won of 20,000 won to the Defendant’s ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○, a 60,00 won of the 50,00 won of the 24 million won of the 200,000 won of the 50,000 won of the 50,000 won of the 50,000 won of the 10,000 won of the 50,000,000 won of the 10,000 won of the 10,000,000 won of the 10,000 won of the 10,000 won of the 10,000 won of the 10,000 won of the 330,000.

5. Conclusion

If so, the plaintiff's lawsuit against ○○○ is unlawful and thus, it is dismissed, and since the claim against ○○○ is reasonable, it is decided to accept it, and it is so decided as per Disposition.

Judge New Constitutional Court of Justice

Judges Lee Ho-ju

Judges Lee Jae-in