Plaintiff (Law Firm Effica, Attorney Park Tae-soo, Counsel for the plaintiff-appellant)

Defendant

October 11, 2018

1. The plaintiff's claim is dismissed.

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

The defendant shall pay to the plaintiff 130 million won with 5% interest per annum from April 16, 2016 to the service date of a copy of the complaint of this case, and 15% interest per annum from the next day to the day of complete payment.

1. Basic facts

A. From around 2006, the Plaintiff entered into an enforcement contract on January 22, 2016 (hereinafter “instant enforcement contract”) under which services necessary for the implementation of the instant project are delegated with the Edi Cases Construction Co., Ltd. (hereinafter “Sdi Cases”) while promoting the housing construction project within the ○○ District Unit Planning Zone (hereinafter “instant project”).

B. On February 17, 2016, the Plaintiff entered into a lease agreement with the Defendant on a deposit amounting to KRW 100 million, KRW 30 million, and KRW 30 million, and KRW 437 square meters (hereinafter “the instant lease agreement”) with respect to the said land ( Address 2 omitted), the amount of 1,213 square meters, and KRW 437 square meters (hereinafter “instant land”). As a special agreement at the time, the Plaintiff entered into an agreement with the Defendant, stating that “1,213 square meters, and KRW 30 million, and KRW 30,000,00,000, and shall be three years from the date of the contract, and the lessee may extend if necessary (hereinafter “instant lease”). The purpose of the instant lease agreement is to construct model houses for the

C. On February 17, 2016, the date of the contract, the Defendant received KRW 10 million as down payment, KRW 20 million on March 16, 2016, KRW 300,000,000 on April 4, 2016, and KRW 130,000,000,000 on April 16, 2016, from Edi Cases.

D. On April 8, 2016, the Plaintiff filed a report on the construction of a temporary building (hereinafter “instant report”) to register as a housing construction business entity for the instant project and build a model house on the instant land, but the said report was rejected.

E. Appellants asserting that “SDR lent KRW 133,00,000 to the Defendant as the rent for the promotion hall site on April 16, 2016,” and filed a lawsuit seeking the return of the loan against the Defendant ( Suwon District Court 2016Gahap83422, Suwon District Court 2017, but withdrawn it on October 17, 2017.

F. On April 11, 2018, SDR sent to the Defendant notice that “The instant lease agreement was null and void, but KRW 133,000,000,000,000,000,000,000,000 is repaid to the Plaintiff,” and the Plaintiff filed the instant lawsuit on May 14, 2018.

[Ground of recognition] Facts without dispute, entry of Gap evidence 1 to 11, purport of the whole pleadings

2. The assertion and judgment

A. The plaintiff's assertion

The instant lease agreement was concluded on the premise that the instant land was used as a model house construction site, but the instant report was rejected, making it impossible to use it as a model house construction site. As such, the instant lease agreement was invalidated. The Plaintiff, upon delivery of the duplicate of the instant complaint, rescinded the instant lease contract or expressed his/her intent of revocation on the ground of mistake. Therefore, the Defendant is obliged to return to the Plaintiff the total amount of KRW 130 million, including the deposit already paid, the annual rent, etc. on the ground of restitution of unjust enrichment or restitution to the original state.

B. Determination

In full view of the following circumstances acknowledged by the aforementioned evidence, the evidence submitted by the Plaintiff alone is insufficient to acknowledge that the instant lease contract was null and void, cancelled, or cancelled, and there is no other evidence to support this. Therefore, the Plaintiff’s above assertion is without merit.

① Since there is no evidence to prove that the use of the land, which is the object of the instant lease agreement, as a model house, was not definitely impossible at the time of the conclusion of the said agreement, the instant lease agreement cannot be deemed null and void.

② Expression of intention may be revoked when there is an error in the important part of the content of the pertinent lease agreement. However, in this case, even if the establishment of a model house, which served as the motive for the conclusion of the instant lease agreement, became the content of the instant lease agreement, it is insufficient to recognize that the evidence submitted by the Plaintiff alone caused any error in the important part at the time of the conclusion of the instant lease agreement, and

③ In order to interpret the grounds irrelevant to the intention or negligence of the parties as the grounds for termination or termination, there should be special circumstances to recognize such grounds in light of the terms and conditions of the contract, transaction practices, etc. Therefore, the fact that the instant lease agreement states “to build a model house for the △△△○ Joint Project” as the special terms and conditions are insufficient to deem that the grounds for cancellation or termination of the instant lease agreement are provided, and there is no other evidence to acknowledge it otherwise.

④ In addition, the reason for the return of the instant report is that “the relevant housing construction project site is not established or the authorization for establishment is not applied, and it is impossible to construct a model house for the unapproved housing construction project because the application for approval for the housing construction project is being received and reviewed by the individual project operator, other than the regional housing association,” and it appears to be based on the Plaintiff’s circumstances on which the approval for the housing construction project plan was not obtained, and there is no evidence to deem that it is impossible to implement due to the

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.

Judges Kim Jong-Gyeong