Plaintiff 1 and 25 others

Plaintiff 2 and 38 others

Plaintiff 5 and 3 others

Plaintiff 10 and five others

Plaintiff 76 and one other (Plaintiff 1, 4, 6, 10, 11, 14, 15, 17, 20 through 22, 27, 33, 35, 36, 40 through 42, 51, 53, 56 through 59, 67 through 73, 76, 77-2, 23 through 26, 28 through 32, 34, 37 through 39, 50 through 50, 56 through 59, 67 through 73, 76, 77-2, 33, 57-26, 28 through 32, 34, 43 through 50, 54, 55, 60 through 664, 75, 75-74, 75).

GaS Construction Co., Ltd. (Law Firm Won, Attorneys Lee Ho-ho et al., Counsel for the plaintiff-appellant)

Suwon District Court Decision 2009Gohap6212 Decided January 29, 2010

March 23, 2011

1. Of the judgment of the court of first instance, the part of the judgment against the defendant ordering payment exceeding the amount equivalent to 5% per annum from April 1, 2009 to May 20, 201, 3% per annum from March 26, 2009 to May 20, 201, and 20% per annum from March 26, 2009 to May 20, 201, and the part against the defendant ordering payment exceeding the amount equivalent to 20% per annum from the next day to the day of full payment, and all of the remaining claims of the above plaintiffs corresponding to the above revoked part are dismissed.

2. The judgment of the first instance on the plaintiffs listed in the separate sheet No. 3, including the claims extended by this court, shall be modified as follows:

A. The Defendant shall pay each of the following amounts to the Plaintiffs listed in the separate sheet No. 3 as to each of the corresponding amounts listed in the same list, and as to each of the amounts listed in the "the "the "the "the "the "the "the "the" date of the "the "the first down payment" listed in the same list; as to each of the amounts listed in the "the "the "the "the "the second down payment" listed in the same list; as to each of the two amounts listed in the "the "the "the "the "the second down payment date" listed in the same list" listed in the same list, 3% per annum from May 18, 2007 to May 20, 201, and 5% per annum from April 1, 2009 to May 20, 201, and 20% per annum from the following day to the date of the full payment.

B. All of the plaintiffs' remaining claims are dismissed.

3. All appeals filed by Plaintiffs 10, 17, 51, 53, 67, and 70 and all remaining appeals filed by the Plaintiffs listed in the Defendant’s attached Table 2 are dismissed.

4. The defendant bears the total costs of the lawsuit between the plaintiffs and the defendant in the separate sheet No. 3 and the costs of appeal against the plaintiffs in the separate sheet No. 2 of the defendant, and the costs of appeal shall be borne by the plaintiffs 10, 17, 51, 53, 67, and 70.

5. Payment of the amount of paragraph 2 (a) above may be provisionally executed.

1. Purport of claim

(a) Plaintiffs 1, 4, 6, 10, 11, 14, 15, 17, 19 through 22, 27, 33, 35, 36, 40 through 42, 51, 53, 56 through 59, 67 through 73, 76, 77 (34; hereinafter “Plaintiffs” in attached Table 2);

The defendant shall pay to the plaintiffs listed in the attached Form 2 with 20% interest per annum from the day after the delivery date of a copy of the complaint of this case to the day of complete payment.

B. Plaintiffs 2, 3, 5, 7 through 9, 12, 13, 16, 18, 23 through 26, 28 through 32, 34, 37 through 39, 43 through 50, 52, 54, 55, 60 through 66, 74, 75 (43 persons; hereinafter “the plaintiffs listed in the attached Table 3”)

The defendant shall pay to the plaintiffs listed in the attached list No. 3 the amount of money listed in the same list and each of the money listed in the "the "the first down payment" column of the same list among the above amounts, from each date stated in the "the first down payment date" column of the same list; with respect to each of the money stated in the "the second down payment date" column of the same list, from each date stated in the "the second down payment date" column of the same list; with respect to the part payment 130,482,850 won from May 18, 2007 to the delivery date of the copy of each complaint of this case; with regard to each of the money stated in the "the penalty" column of the same list, 20% per annum from the day following the delivery date of the copy of the complaint of this case to the day of complete payment; and with regard to each of the money stated in the "the second down payment" column of the same list, 20% per annum from each day to the day of complete payment (the above plaintiffs sought

2. Purport of appeal

A. Plaintiffs listed in the separate sheet No. 3

The judgment of the first instance is modified as stated in the purport of the claim (Provided, That with respect to plaintiffs 8, 9, 12, 13, 16, 16, 28, 34, 37, 52, 62 through 66, 74, and 75, "not later than the date of service of the copy of each complaint of this case" in the purport of the claim shall be changed to "not later than March 31, 2009," and plaintiffs 5, 18, 45, and 46 shall be deemed to have filed incidental appeal by expanding the purport of the claim in the first instance trial as described in subparagraph 1(b).

B. Plaintiffs 10, 17, 51, 53, 67, and 70 (not less than six persons)

Of the judgment of the court of first instance, the part regarding the above plaintiffs shall be revoked. The defendant shall pay to the above plaintiffs 20% interest per annum from the day after the delivery date of a copy of the complaint of this case to the day of complete payment.

(c) Sponsor;

Of the judgment of the court of first instance, the part against the defendant in the list Nos. 2 and 3 against the plaintiffs is revoked, and the above plaintiffs' claims corresponding to the revoked part are dismissed.

1. Quotation of judgment of the first instance;

The reasoning of this court's judgment is the same as that of the corresponding part of the judgment of the court of first instance except for the addition or dismissal as follows, and thus, it is acceptable to accept it in accordance with the main sentence of Article 420 of the Civil Procedure Act

(a) 2 pages 12 of the judgment of the first instance court changed “No. 5” to “No. 5-1 to 5 of the evidence A,” and add “No. 10-3, A-24, A-1, and 40-2” to 3 others.

(b) to delete any one or six acts below the 19th judgment and to add to all the following judgments:

As to this, the plaintiffs 10, 17, 51, 53, 67, 70 (only in this part of judgment, referred to as the above plaintiffs) merely focuses on the fact that at the time the plaintiff 10, 17 agreed on the alteration of the terms of sale with the defendant (hereinafter referred to as the "instant alteration agreement"), the parties' delayed compensation due to the payment of intermediate payment and the alteration of the scheduled date of occupancy can not be automatically extended for three months due to the alteration of the scheduled date of occupancy. ② The plaintiffs 51, 53, 67, 70 did not automatically extend the time of exercise of the right to cancel due to the alteration of the scheduled date of occupancy. The plaintiffs 50, 200, 300,000,000 won and 20,000,000 won and 30,000,000,000 won and 9,000,000,000 won and 9,00,000.

In light of the overall purport of Gap evidence Nos. 1-71, 75, 88, 91, and Eul evidence Nos. 9-1, 17 as of December 2008 to March 2009, the initial supply contract was changed from December 1, 2008 to the initial supply contract was entered, and it was agreed to substitute the original supply contract. The plaintiff 10 had already paid 40% of intermediate payment to the defendant at the time of the completion of the implementation agreement. The plaintiff 5's new sale contract signed between the plaintiff 51, 53, 67, and 70 and the defendant's new sale contract was changed to the date of occupancy on March 3, 2009 (total supplied amount), and it cannot be seen that the new sale contract was changed to the scheduled date of occupancy on the new sale contract or changed terms and conditions of intermediate payment, and the plaintiff 10 can not be seen as having agreed to modify the terms and conditions of the new sale contract or changed terms and conditions of the sale contract.

(c)on the 24th judgment of the first instance court, the following seven judgments shall be added:

Even if the provision of this case is deemed to be a provision providing for the omission or substitution of “the demand for performance setting a reasonable period of time” among the requirements for the right to cancel the contract of this case due to the delay of performance, since the contract of this case was agreed to pay the intermediate payment and the balance at the time of occupancy (designated as the time of occupancy), it cannot be deemed that the due date of the obligation to pay the intermediate payment and the balance (as of April 1, 2009) has arrived at the time of the cancellation of this case (as of May 29, 2009, designated as the due date of occupancy designation). Thus, this part of the defendant’s assertion on the premise that there is a simultaneous performance defense right is not reasonable.

(d)on the 24th judgment of the first instance court, the following judgments shall be added:

D) The defendant asserts that even if the contract of this case was terminated by the defendant's reason attributable to the defendant, most of the plaintiffs are not the actual users for moving into the apartment of this case, but only 10% of the purchase price, and as soon as the construction is completed, a considerable period of time was required to reflect the unreasonable requirements of the buyers, and the occupancy was delayed due to collective interference with the construction completion of the buyers, only minor period than the initial scheduled date of occupancy was delayed, and there was no special loss to the plaintiffs, the penalty should be reduced excessively because it is excessive as the scheduled amount of damages.

Article 3(2) of the instant sales contract and Article 3(2) of the “When the contract is rescinded due to the reasons attributable to the Defendant that the contract could not move into within three months from the scheduled date of occupancy due to the reasons attributable to the Defendant, the Defendant shall pay the Plaintiffs the total amount of 10% of the supply price as penalty. As seen earlier, the agreement of penalty for breach of contract is presumed to be liquidated damages, and where the amount is unreasonably excessive, the court may reduce it to a reasonable extent (Article 398(4) and (2) of the

Therefore, 10% of the liquidated damages are determined in advance as to whether the liquidated damages are unfairly excessive as the liquidated damages, and the liquidated damages under Article 398 of the Civil Act are to be paid by the debtor in the event of nonperformance. The purpose of the liquidated damages is to ensure performance of obligations by providing psychological warning to the debtor in addition to preventing disputes in advance and simply resolving legal relations by preventing the occurrence of damages and losses in advance. Thus, even if the debtor proves that there is no actual occurrence of damages or that the amount of damages is less than the estimated damages, the debtor shall not be exempted from the payment of the estimated damages or may not demand a reduction of the estimated damages. Therefore, the phrase “unfair excessive cases” where the court may reduce the estimated damages pursuant to Article 398(2) of the Civil Act is insufficient solely on the basis that the estimated damages are less than the estimated damages, and the economic status, purpose and content of the contract, circumstances of the estimated damages, and other various circumstances are to be determined by the Supreme Court Decision 197Da419798, Apr. 19, 1997.

In full view of the purport of the argument in the above evidence, most of the plaintiffs paid 10% of the purchase price as down payment and deferred payment of the remaining 90% until the time of occupancy, and the construction is somewhat delayed to reflect the requirements of the buyer's associations such as the council of occupants, etc., the plaintiffs' apartment market price falls short of the initial sale price due to the decline in real estate market price after concluding the contract in this case, but there is no evidence to recognize that the plaintiffs were sold mainly not the actual users but the realization of the resale profit. Meanwhile, it is a common transaction practice to determine the estimated amount of compensation for damages equivalent to 10% of the total sale price and 10% of the total sale price as the estimated amount of compensation for damages, and it is difficult to view that the defendant as the apartment selling company cannot be regarded as the economic weak compared to the plaintiffs. Thus, the defendant's assertion that is based on a different premise is without merit.

E. On the 6th, 6th, and 7th, the first instance court held that the Defendant was the same company, and that the Defendant was the same company.

F. From 27th to 18th of the first instance judgment, the Plaintiff’s deletion from 27th to 13th of the 18th instance judgment (the Plaintiff’s withdrawal of this part’s assertion at the trial), and the following judgments are added to the title “(c) of “Determination on the Interest Rate at the time of return of unjust enrichment”

The plaintiffs in the attached list 2 and 3 claim that the payment shall be made by adding interest at the rate of 5% per annum as stipulated in the Civil Act at the time of return of the sale price, and the defendant asserts that the interest rate to be added at the time of return of the sale price at the time of the sale at the time of return pursuant to Article 3 (3) of the sales contract at the time of the

On the other hand, Article 379 of the Civil Act provides that "The interest rate of a claim with interest shall be 5% per annum unless otherwise provided by other Acts or agreed by the parties." At the time of the conclusion of the instant sales contract, the Defendant agreed that "if the instant sales contract is cancelled due to reasons attributable to A (Defendant) or B (Plaintiffs) and the penalty is to be paid, the amount already paid shall be refunded to B (in the case of paragraph (1), the penalty shall be deducted) by adding the interest equivalent to 3% per annum per annum from the date of receipt to the date of refund (Article 3 (3)), and the fact that the sales contract with the Plaintiffs as listed in the attached Forms 2 and 3 list is legally cancelled due to reasons attributable to the Defendant.

Therefore, the defendant is obligated to pay the purchase price already paid to the plaintiffs listed in the separate sheet Nos. 2 and 3 by adding the interest rate of 3% per annum to the sale price already paid. Therefore, the defendant's above assertion is with merit.

(g) No. 27 of the judgment of the first instance court, "C. Sub-decision" part shall be as follows: (d) the title "sub-decision" shall be as follows:

그렇다면, 피고는 ① 별지 제2목록 기재 원고들에게 이 사건 분양계약의 해제에 따른 원상회복으로 위 원고들이 피고에게 지급한 계약금, 중도금과 이 사건 분양계약 제3조 제2항, 제2조 제3항에 의한 분양대금의 10%에 해당하는 위약금의 합계인 같은 목록 중 ‘인용금액’란 기재 각 해당 금원 및 그 중 ㉠ 원상회복 부분(계약금, 중도금의 합계)에 대하여는 위 원고들이 구하는 바에 따라 이 사건 소장 부본 송달일 다음날인 2009. 3. 26.부터 피고가 이행의무의 존부 및 그 범위에 관하여 항쟁함이 상당하다고 인정되는 당심 판결 선고일인 2011. 5. 20.까지는 이 사건 분양계약 제3조 제3항에 따라 연 3%의, ㉡ 위약금 부분에 대하여는 이 사건 분양계약이 해제된 2009. 4. 1.부터 피고가 이행의무의 존부 및 그 범위에 관하여 항쟁함이 상당하다고 인정되는 당심 판결 선고일인 2011. 5. 20.까지는 민법이 정한 연 5%의, 각 그 다음날부터 다 갚는 날까지는 소송촉진 등에 관한 특례법이 정한 연 20%의 각 비율에 의한 이자 또는 지연손해금을 지급할 의무가 있고, ② 별지 제3목록 기재 원고들에게 같은 목록 중 ‘청구금액’란 기재 각 해당 금원 및 그 중 ㉠ 같은 목록 ‘1차 계약금’란 기재 각 금원에 대하여는 같은 목록 ‘1차 계약금지급일’란 기재 각 일자부터, ㉡ 같은 목록 ‘2차 계약금’란 기재 각 금원에 대하여는 같은 목록 ‘2차 계약금지급일’란 기재 각 일자부터, ㉢ 원고 28에 대한 중도금(연체료 포함) 130,482,850원(= 중도금 128,000,000원 + 중도금 납입기일 다음날부터 실제 중도금 납부일인 2007. 5. 18.까지 이 사건 분양계약 제5조 제2항에 따라 계산한 연체료 2,482,850원)에 대하여는 2007. 5. 18.부터 피고가 이행의무의 존부 및 그 범위에 관하여 항쟁함이 상당하다고 인정되는 당심 판결 선고일인 2011. 5. 20.까지는 이 사건 분양계약 제3조 제3항에 따라 각 연 3%의, ㉣ 같은 목록 ‘위약금’란 기재 각 금원에 대하여는 이 사건 분양계약이 해제된 2009. 4. 1.부터 피고가 이행의무의 존부 및 그 범위에 관하여 항쟁함이 상당하다고 인정되는 당심 판결 선고일인 2011. 5. 20.까지는 민법이 정한 연 5%의, 각 그 다음날부터 다 갚는 날까지는 소송촉진 등에 관한 특례법이 정한 연 20%의 각 비율에 의한 이자 또는 지연손해금을 각 지급할 의무가 있다.

2. Conclusion

Therefore, the claims of the plaintiffs 10, 17, 51, 53, 67, and 70 are all dismissed for the reason that they are without merit. The claims of the plaintiffs listed in the separate sheet Nos. 2 and 3 are accepted for the reasons within the scope of the above recognition. The remaining claims of the plaintiffs are all dismissed for the reason that they are without merit. ① The part of the judgment of the court of first instance as to the plaintiffs 10, 17, 51, 53, 67, and 70 is just in conclusion, and ② the appeal of the above plaintiffs is dismissed, and ② the part of the judgment of the court of first instance against the defendant which ordered payment to the defendants in excess of the above recognized amount is unfair, and the part of the appeal against the plaintiffs listed in the separate sheet No. 2 in the separate sheet No. 2 of the defendant is revoked, and the remaining appeals against the plaintiffs listed in the separate sheet No. 3 of the judgment of the court of first instance is partially unfair, and it is so unfair that part of the appeal against the plaintiffs's appeal or the defendant's appeal.

[Attachment]

Judges Kim Yong-maid (Presiding Judge)