2012 or 3831 Return of down payment, etc.

A

Attorney Lee Jae-hoon, Counsel for the plaintiff-appellant

1. Grand Plus C&D Co., Ltd.;

2. Incorporated Construction Co., Ltd.

[Defendant-Appellant] Plaintiff C

Changwon District Court Decision 201Gahap3247 decided August 8, 2012

May 23, 2013

June 28, 2013

1. The plaintiff's appeal against the defendants is dismissed in entirety.

2. The costs of appeal shall be borne by the Plaintiff.

The judgment of the first instance is revoked. The Defendants jointly and severally pay to the Plaintiff the amount of KRW 53,768,400 and the amount calculated by 20% per annum from the final delivery date of the copy of the claim of this case and the application for modification of the cause of this case to the full payment date.

1. Basic facts

A. On September 14, 2006, D entered into a contract for sale in lots (hereinafter referred to as the "sale in lots") with Defendant Grand Flus C&D Co., Ltd. (hereinafter referred to as the "Defendant Grand Flus"), and paid KRW 269,184,000, 901 (hereinafter referred to as the "multi-unit apartment of this case"), located in 705, Jinsan-si, Geumsan-si, 105, 705, 100, 2009, with the supply price for the apartment of this case (hereinafter referred to as the "multi-unit apartment of this case"), and paid KRW 13,500,000 on the date of the contract, as follows.

Article 2 (Methods for Payment of Supply Prices)

(1) D shall pay the supply price to Defendant Ireland on the designated date, as follows:

(unit: won)

A person shall be appointed.

(2) Payment of intermediate payments and any balance must be made to the account of Defendant 20 U.S. Construction as designated by Defendant Ireland.

The account shall be deposited in the name of the principal, and there shall be no obligation to notify the payment of the intermediate payment separately.

* Defendant Grandus and D agree on the terms and conditions of the payment of interest on the intermediate payment.

Company’s charge (interest-free): Defendant Grandus 1: (a) by the first day before the date on which the intermediate payment interest is designated to move in;

payment.

Interest: Interest payment date for the month in which the intermediate payment interest is first designated to move in and the first designation of moving in;

Not later than the earlier date, the full amount of the loan interest paid by Defendant Ireland on behalf of the Corporation shall be D

any balance payment shall be made in full to the account designated by Defendant Grand Plus.

Article 4 (Cancellation of Contracts)

When the Defendants committed an act falling under any of the following subparagraphs, in the event that no implementation is made after peremptory notice:

The sales contract of this case can be cancelled.

(2) The Defendants failed to pay interest, etc. on a loan arranged by the Defendants’ guarantee.

In the event that the convergence institution claims performance on behalf of the defendant Grand plus, the defendant Grand plus

D A financial institution with a grace period of at least 14 days and with a peremptory notice of at least twice shall have interest, etc. thereon.

when such payment is not made

(3) D is entitled to move in within 3 months from the scheduled date of move in due to the reasons attributable to the Defendant Ireland.

in the absence of such

Article 5 (Penalties)

(2) When the sales contract of this case was cancelled for reasons falling under Article 4(3), Defendant Grand Ireland.

D. 10% of the total amount of the supply price shall be paid as penalty.

Article 6 (Resale of Ownership)

(2) The resale of the right to sell shares must obtain the approval of the Defendants.

(3) The resale of the right to sell in lots under subsection (2) has fulfilled the obligation to Defendant Grand Plus at the time of the application for approval

only if the loan institution has obtained a loan from the lending institution for the apartment of this case

documents evidencing the succession of loans between the parties to the resale of loans issued by the Corporation shall be submitted to Defendant Ireland.

(c) Unless otherwise provided, the principal of the loan shall be repaid to financial institutions;

B. Thereafter, on September 23, 2006, E succeeded to D’s rights and obligations under the instant sales contract from D, and on July 21, 2008, F succeeded to E’s rights and obligations under the instant sales contract from E on October 10, 2008, and paid KRW 48,000,000 out of the remainder of intermediate payment of KRW 13,350,000 on March 17, 2009.

C. On the other hand, on January 28, 2009, Cheongan Pib Co., Ltd. received a provisional attachment order against F as the 2009Kadan516 branch court of the Daegu District Court as the debtor, and the Defendants as the third debtor, as to the instant apartment, such as transfer of ownership, etc. as to the instant apartment.

D. After that, on March 17, 2009, the Plaintiff expressed to the Defendants the intent to succeed to F’s rights and obligations under the instant sales contract (hereinafter “sale right”). On March 19, 2009, the Plaintiff transferred the remainder of KRW 32,824,00 on March 19, 200; KRW 12,743,736; KRW 4,980; KRW 150,000; KRW 50,736; KRW 161,510; KRW 212,207,736; and KRW 207,736,76; and KRW 161,57,736,00, total sum of KRW 161,510,00 that was loaned by the Agricultural Cooperative to convert the loan from the Plaintiff’s account in the name of the Plaintiff.

E. However, while examining whether the grounds for restrictions on the resale of the instant apartment units between the Plaintiff and the F exist, the Defendants came to know of the fact that Pib Company was subject to the F’s decision of provisional seizure on the F’s right to file a claim for ownership transfer registration of the instant apartment units against the Defendants of the Daegu District Court (Seoul District Court Branch Branch 2009Kadan516). In the event a provisional seizure order is issued against the buyer’s right to claim ownership transfer registration of the real estate sold in lots, the Defendants decided not to allow the resale of the instant apartment units between the Plaintiff and F in accordance with the internal policy to restrict the resale of the sale rights, as there is a concern for legal disputes between the parties

F. Accordingly, Defendant Bsan Construction notified of the non-approval of the resale of the instant apartment purchase right at the Handong Branch, the Nonghyup Bank, a bank dealing with the intermediate payment of the instant apartment, and the head office of the Nonghyup Bank, the head office of the NH Bank, revoked the part of the takeover of the intermediate payment loan that was converted from FF to the Plaintiff’s name, and corrected the above KRW 212,207,736, which was processed by replacing the intermediate payment loan in the Plaintiff’s account under the name of the Plaintiff on the same day, and did not eventually succeed to the loan between F and the Plaintiff.

G. After that, the Defendants requested the Plaintiff to submit a copy of the passbook and identification card in the name of the Plaintiff in order to return the remainder, etc. received from the Plaintiff, and the Plaintiff sent a copy of the passbook and identification card in the name of the Plaintiff by facsimile, and returned KRW 48,000,000 to the said Nonghyup’s account on March 23, 2009.

H. On March 25, 2010 and April 15, 2010, the Defendants urged the payment of F, the Plaintiff’s total number of buyers, as above, of the loan repayment and unpaid balance. On December 2011, the Defendants received a request for payment of intermediate payment from the Nonghyup, the banks dealing with part payments, in lieu of part payments, upon the expiration of the maturity period for part payments loans. The Defendants paid 161,510,000 won to the Nonghyup.

I. Accordingly, the Defendants, on December 5, 201, expressed to F on December 5, 201, the intent to cancel the instant sales contract on the grounds that “in the event that the purchaser failed to pay interest, etc. on the loans arranged by the guarantee from the Defendant and the financial institution claims performance instead of Defendant Grand Plus on behalf of the Defendant, it constitutes “when the purchaser did not pay interest, etc. to the financial institution” (Article 4(2) of the instant sales contract) even if at least twice set a grace period of at least 14 days and notified by Defendant Grand Plus at least twice (Article 4(2) of the instant sales contract).

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 8, Gap evidence No. 11, Eul evidence No. 2 through 7, Eul evidence No. 9 and 10 (including each number), and the purport of the whole pleadings

2. The parties' assertion

A. The plaintiff

The Defendants approved the resale of the instant apartment ownership. Accordingly, on March 19, 2009, the Plaintiff paid the remainder of KRW 32,824,00 to the Defendant, and up to the time, KRW 12,743,736, totaling KRW 45,567,736, which the Defendants paid to the financial institution, to the Defendant, and tried to move into the instant apartment.

The Defendants unilaterally refused the Plaintiff’s occupancy on the ground of the foregoing provisional attachment decision. However, the fact that there was a decision of provisional attachment against the right to claim ownership transfer registration of the apartment of this case cannot be a ground for limiting the resale of the right to sell the apartment of this case between the Plaintiff and the F or refusing to move into

Therefore, the Plaintiff may cancel the instant sales contract where it is impossible for the Plaintiff to move into within three months from the scheduled date of move into due to the reasons attributable to the Defendant. “The instant sales contract is cancelled by the delivery of a copy of the instant complaint pursuant to Article 4(3).

Therefore, the Defendants are obligated to refund the down payment KRW 26,850,000 to the Plaintiff following the cancellation of the instant sales contract. When the contract is terminated due to the Defendants’ fault, the Defendants are obligated to pay the Plaintiff penalty of KRW 26,918,400 (=269,184,000 x 10%) in accordance with Article 5(2) of the instant sales contract in which the amount of the total supply price is paid to the Plaintiff as penalty. Accordingly, the Defendants are jointly and severally liable to pay the Plaintiff KRW 53,768,40 (=26,850,000 + the down payment KRW 26,918,400).

B. The Defendants

Since F’s decision was made on provisional attachment against F’s right to claim ownership transfer registration of the apartment complex of this case, the Defendant did not approve the resale of the instant apartment of this case. If approval was granted, the Defendant immediately withdrawn the approval and notified the Plaintiff of the withdrawal of approval. Accordingly, the Plaintiff failed to obtain the resale of the instant apartment of this case. Therefore, the Plaintiff cannot claim for the return of down payment, etc. on the premise that the Defendants are in the status of the sub-contractor.

3. Determination

○ The premise of the Plaintiff’s assertion is that the Plaintiff is in the position of the seller for sale of the instant apartment. In other words, the resale of the instant apartment was effective.

Although it is not clear about the process of the overall case, the plaintiff's assertion cannot be accepted. The reasons are as follows.

① The resale of the instant parcelling-out right requires the approval of the Defendants pursuant to Article 6(2) of the instant parcelling-out contract. There was no approval.

1. ② Under the instant contract for sale in lots, there are no restrictions on the grounds for approval or rejection of approval for the resale of the right to sell in lots. Therefore, the Defendants should have a broad discretion to determine whether to approve the sale in lots. It cannot be said that the approval on the grounds of the above provisional seizure order goes beyond the scope of such discretion. This is because there is a law in place that the legal relationship of the parties concerned would be complicated according to the above provisional seizure order, and the Plaintiff has the possibility of resolving the above provisional seizure problem and acquiring the right to sell in lots again.

③ The Plaintiff paid the remainder and interest of intermediate payments, etc., not because the Defendants approved the resale of the instant parcelling-out right. This is merely the fact that the sales contract of this case took the procedure for applying for approval for the purchase of pre-sale right pursuant to Article 6(3).

④ Based on the circumstances in which KRW 48,00,000 was returned to the agricultural bank account under the Plaintiff’s name, the Defendants cannot be deemed to have approved the sale of this case. Rather, the Defendants requested the Plaintiff to produce copies of the passbook and identification card in the name of the Plaintiff to return the remainder, etc. paid to the Plaintiff after refusing the approval. This is because the Plaintiff sent a copy of the passbook and identification card in the name of the Plaintiff to the Defendants by facsimile.

⑤ In light of the circumstances in which KRW 212,207,736, such as an intermediate payment loan, etc. deposited from the Plaintiff’s agricultural bank account was revoked, and KRW 48,00,000 was returned to the Plaintiff’s agricultural bank account, the Defendants’ intent to refuse approval was sent to the Plaintiff at least from March 19, 2009 to March 23, 2009, and the Plaintiff’s intention to refuse approval was deemed to have not been raised as to the legitimacy of the refusal itself.

④ The Defendants urged F to pay F for the repayment of intermediate payment loans and the balance payment once on March 25, 2010 and April 15, 2010, which the F still holds the position of purchaser under the instant sales contract, and notified F to F that the instant sales contract was cancelled on December 5, 201, in order that F would not pay for the repayment of intermediate payment loans and the balance.

7) There is no evidence to acknowledge that the Plaintiff is in the position of the seller for sale in the instant apartment.

4. Conclusion

Therefore, the plaintiff's claim against the defendants of this case is dismissed in its entirety as it is without merit. The judgment of the court of first instance is justified in its conclusion. Thus, the plaintiff's appeal against the defendants is dismissed in its entirety as it has no merit. It is so decided as per Disposition.

Kim (Presiding Judge)

Gazers

Park Jae-rein iron