(영문) 대구지방법원 2012.5.3.선고 2010가합9959 판결

The Defendants shall pay to each of the Plaintiffs listed in the Plaintiff’s column of the claim amount sheet in attached Form 3 the amount corresponding to each of the corresponding items in the claim amount column of the same Table, and the amount calculated by 20% per annum from the day after the delivery of a copy of the complaint of this case to the day of full payment

Reasons

1. Basic facts

A. Status of the Defendants

Defendant Seapid Co., Ltd. (hereinafter referred to as “Defendant Seapid System”) is a company that newly constructs and sells B apartment units on the land outside Daegu Suwon-gu A and outside 201 lots of land (hereinafter referred to as “instant apartment units”) and Defendant Twosan Construction Co., Ltd. (hereinafter referred to as “Defendant Twosan Construction”) entered into a contract for the instant new apartment construction with Defendant Seapid System and newly constructs the instant apartment units. Defendant Daegu Metropolitan City is a company that has the authority to approve the instant construction project plan and the approval authority of Defendant Daegu Metropolitan City Suwon-gu (hereinafter referred to as “Defendant Suwon-gu”) to approve the instant apartment unit recruitment plan.

B. Approval of the housing construction project plan and the public notice for the recruitment of occupants of the apartment in this case

1) Defendant Seaplow system had gone through a traffic impact assessment prior to the application for approval of the project plan of the apartment in this case. During that process, Defendant Daegu Metropolitan City presented a prior opinion on the request of Defendant Suwon-gu for the establishment of the library (hereinafter “instant library”) and the request of the subway headquarters for the installation of the underground pedestrian passage connecting the apartment in this case to EV stations (hereinafter “instant underground pedestrian passage”), which is linked to the EV stations, in consideration of the convenience of the occupants of the apartment in this case and the Gu residents.

2) After the deliberation of the traffic impact assessment, the Defendant Seapian applied for the approval of the housing construction project plan of the apartment of this case to the Daegu Metropolitan City Mayor on June 21, 2005, and concluded an agreement with the Defendant Daegu Metropolitan City on July 13, 2005 on the construction of the underground passage of this case between the Defendant Daegu Metropolitan City and the Defendant Daegu Metropolitan City on July 13, 2005 to contribute it to the Defendant Daegu Metropolitan City. On October 1, 2005, the Defendant Seap Capital purchased the site of the library of this case and newly constructed the library at that place, and concluded an agreement on October 205 to contribute it to the Defendant Suwon Metropolitan City.

3) The Daegu Metropolitan City Mayor approved the construction project plan of the instant apartment on November 14, 2005, subject to the condition that, prior to the approval of the use of the instant apartment in the D Park 6,553m in accordance with the above Convention, the Defendant Seabook established the instant library and donated the instant library to the D Park 6,55m prior to the approval of the use of the instant apartment, the installation agreement on the instant underground pedestrian passages concluded with the Defendant Daegu Metropolitan City, implemented, and the scope of the public facilities installed or provided by the project proprietor to prevent civil complaints regarding the computation of the occupants’ selling price should be specified in the sale announcement.

4) On December 9, 2005, the head of the Daegu Metropolitan City Suwon District District Office approved a proposal for the recruitment of occupants as applied by Defendant Seabook. The matters to be considered as follows: “The purchase of D Park 6,533 square meters, the acceptance of facility donations, and the installation plan and the matters of the Convention, which entered into with the subway Construction Headquarters, shall be stated as “the project undertaker is expected to accept the donation in accordance with the terms and conditions of the project approval.”

5) Around December 2005, Defendant Seahive System recruited occupants according to the proposal for the recruitment of occupants, and entered into a sales contract. On December 24, 2009, Defendant Seahive System obtained approval for the use of the apartment in the instant case from the head of the Gu of Daegu Metropolitan City.

[Ground of recognition] Facts without dispute, Gap evidence 1, 3, 10, 11, Eul evidence 2, Eul evidence 1, 2, Eul evidence 1, 1 and 2, Eul evidence 1 and 2 (including each number, if any, if any; hereinafter the same shall apply), and the purport of the whole pleadings

2. The plaintiffs' assertion

A. Status of the plaintiffs

The plaintiffs are those who have acquired the status of the seller from the persons who have sold or acquired the apartment of this case from the defendant Seahive System.

B. Claim for damages due to deception (claim against the Defendant)

1) Although Defendant Seabaon purchased a site for D Park in the budget of a million won and appropriated the purchase cost of the construction of the library of this case on its ground, if it was planned to contribute it to Defendant Suwon-gu, it would belong to the Plaintiffs as if it were to contribute park facilities that are almost little expenses, and (2) despite the construction of the underground pedestrian passage of this case by bringing an amount equivalent to the cost of KRW 50 billion, it would belong to the Plaintiffs as if it would contribute a normal level of pedestrian passage; and (3) although it purchased a new apartment of this case and donated it as a parking lot, it did not notify the Plaintiffs of this fact, despite the fact that it was planned to contribute it to the construction of the apartment of this case, it did not notify the Plaintiffs of it.

2) As the convenience of residential life is emphasized, green belt ratio becomes an important factor in the conclusion of the sales contract. Although Defendant Seapian did not belong to the instant apartment complex’s business site, Defendant Seapian dismissed the Plaintiffs as if they were created and provided as green areas through the explanation of the employees in charge of advertising, sloping or sales, even though they did not belong to the instant apartment complex’s business site.

3) The plaintiffs entered into a contract for the sale of the apartment of this case or entered into the contract for the sale of the apartment of this case. The plaintiffs mentioned in attached Form 1 seek the cancellation of each contract for the sale of the apartment of this case and the return of the sale price already paid due to restitution. The plaintiffs mentioned in attached Form 2 claim compensation for damages on the same ground, but the plaintiffs seek the amount of money claimed by each claim as part of the claim.

4) In such a case, Defendant YY is a seller for sale in lots, and Defendant 2 is jointly and severally liable for damages suffered by the plaintiffs as a project undertaker who actually implemented the apartment construction project of this case using the name of Defendant YY. Defendant 2 has a duty to compensate for the damages suffered by the plaintiffs. Defendant 2 has approved the construction plan of the apartment of this case under the condition that the construction plan of the apartment of this case should be clearly stated in the public notice on the recruitment of occupants in the library of this case and the parking lot which was scheduled to be donated as the approval authority in the public notice on the recruitment of occupants. Defendant 3 Daegu Metropolitan City approved the construction plan of the apartment of this case under the condition that the construction plan of the apartment of this case should be specified in the public notice on the sale in lots. Defendant 2 did not confirm whether such approval conditions have been fulfilled. Thus, Defendant 3 Daegu Metropolitan City and Sungdong-gu constitutes a tort, Defendant Daegu Metropolitan City and Suwon-gu are jointly and severally liable for damages suffered by the plaintiffs.

C. A claim for damages due to the nonperformance of the contract for sale in lots (the claim for Defendant Seaplow, 200) 1) Defendant Seaplow, 200, and 200 were to construct the apartment of this case in accordance with the design drawings at the time of approval of the project plan, but the apartment of this case was to be constructed in accordance with the design drawings at the time of approval of the project plan, the apartment of this case violated the contract for sale in lots by executing construction different from design drawings

2) The aforementioned Defendants advertised the instant green belt display land as a green belt and provided it to the Plaintiffs. In fact, they purchased the instant parking lot, which is part of the instant green belt display land, and donated it. As such, the obligation to create green belt on the instant green belt display land was included in the contents of the contract, and the said Defendants violated the said obligation.

3) Therefore, the above Defendants are jointly and severally liable to compensate the Plaintiffs for the damages they suffered due to the Plaintiffs’ failure to perform their duty to construct, alter, or create a green belt in the instant apartment.

3. Judgment on the plaintiffs' assertion

A. As to the fraudulent act

1) Basic legal principles

If it is evident in light of the empirical rule that the other party to a transaction would not have been notified of certain circumstances in real estate transactions, it is obligated to notify the other party of such circumstances in advance in accordance with the principle of good faith. The subject matter of such duty of disclosure can be acknowledged not only by the direct statutory provisions, but also by the general principles of contract, customs, or cooking (see Supreme Court Decision 2004Da48515, Oct. 12, 2006). Moreover, it is impossible to expect that a business operator would prohibit any exaggeration in advertising and advertising his/her own goods in reality. Therefore, if the business operator falsely notifies the important facts of the transaction in light of the good faith and good faith in advertising of the product, it constitutes deception. However, the mere exaggeration that requires a certain exaggeration in the advertisement constitutes a violation of the good faith and good faith principle, and thus, it does not constitute a false representation to the extent that it can be deemed to constitute a violation of the good faith and good faith principle (see Supreme Court Decision 2008Da5120714, Aug. 20, 2009).

2) Regarding contribution acceptance

First of all, as to whether the library of this case and the underground passage of this case did not sufficiently notify the plaintiffs of the fact of donation, the fact that "the purchase of the D Park 6,533 meters and the pedestrian passage installation plan and the agreed matters entered into with the subway Construction Headquarters" are stated as follows: "the project undertaker is scheduled to give the donation in accordance with the project approval terms and conditions"; according to Gap evidence 3, 11, Eul evidence 14 and 15, the contents of the apartment construction plan of this case, the library of this case and the underground passage of this case are already reported to the media as to whether the apartment construction plan of this case had already been notified of the fact of donation; the fact that the library of this case and the underground passage of this case had already been notified of the fact of the fact of the donation; the contents of the apartment recruitment plan of this case and the installation plan of the underground passage of this case can not be acknowledged as the contents of the apartment construction plan of this case; the contents of the apartment construction plan of this case can be acknowledged as the content of the apartment construction plan of this case; and the content of the apartment construction plan of this case.

Then, we examine whether there was an error of not notifying the fact of the donation of the instant parking lot to Defendant Hahy. The instant parking lot is an attached parking lot of the shopping mall in the Daegu Metropolitan City, which is necessarily accompanied by the installation of the instant underground pedestrian passage. As the subway Construction Headquarters demanded that the annexed parking lot of the instant underground pedestrian passage facilities be installed separately from the site of the instant library around March 2006, it was merely purchased the site of the instant parking lot, and thus, Defendant Hahyp did not specifically notify the fact of the donation of the instant parking lot. Even if the Daegu Metropolitan City Construction Headquarters requested that the instant parking lot should be installed separately from the site of the instant library, it cannot be seen that there was no evidence that Defendant Hahyp did not have any duty to notify the fact of the donation of the instant parking lot, which is part of the fact that the instant parking lot was acquired. However, according to the fact that Defendant Hahypyp’s construction of the instant apartment No. 5-2, each apartment lot No. 1 and No. 2, it can be seen that the instant parking lot was purchased separately from the instant parking lot.

3) In light of the plaintiffs' assertion related to the provision of soft land, it can be acknowledged that the above green area display land excluded from the project site of the apartment of this case is a green area, and there is no evidence to acknowledge that the employees in charge of the sale of the apartment of this case belonged to the plaintiffs. According to Gap's evidence Nos. 7 and 8 and its image, the green area display land of this case is expressed as green area. The act of indicating others' land as green area constitutes violation of the Act on Fair Labeling and Advertising. However, even if the above green area display land of this case was expressed as green area, it can be acknowledged that the above green area display land of this case was included in green area display as green area, and there is no evidence to acknowledge that the green area display land of this case was included in green area display as green area display, and there is no difference between the above apartment area No. 3, No. 11, No. 11, No. 13, No. 2, and No. 2, No. 15, etc., in green area display model of the apartment of this case.

4) Sub-committee

Therefore, the above claim that the plaintiffs seek against the defendants as compensation for damages arising from deception itself or illegal acts by supervisory agencies on the premise that the defendant, the piracy system belongs to the plaintiffs' contribution acceptance, the creation of green belt, the restoration of the original state following the cancellation of the sales contract, the compensation for damages arising from the deception itself, or the above claim is without merit.

B. As to the default of the sales contract

1) As to non-performance and modified performance

In the area of the quality, structure, interior decoration, etc. of the apartment of this case, it is not sufficient to recognize the above only by the descriptions of the design drawings or the evidence Nos. 15 through 30, and there is no other evidence to prove otherwise.

2) Regarding the provision of reading

In light of the above, it is not sufficient to recognize that Defendant Seahyp promised to create a green belt in the land of this case and to provide it to the plaintiffs, and whether the aforementioned agreement was reached as to whether Defendant Seahyp intended to incorporate it into the contents of the contract. The above evidence alone is insufficient to recognize that Defendant Seahyp promised to provide the plaintiffs with the green belt by creating the green belt land of this case as a green belt, and there is no other evidence to

3) Sub-committee

Therefore, the plaintiffs' above claims against the above defendants on the grounds that the defendant Seapact and Dusan Construction violated the apartment sale contract in this case are without merit.

4. Conclusion

Therefore, the plaintiffs' claim against the defendants of this case is dismissed as it is without merit, and it is so decided as per Disposition.

Judges

The names of judges of the presiding judge.

Judges Lee Jae-hoon

Judges Maximum Beneficiaries

Attached Form

A person shall be appointed.

참조조문

-민법

참조판례

-대법원 2006. 10. 12. 선고 2004다48515 판결

-대법원 2009. 8. 20. 선고 2008다51120,51137,51144,51151 판결

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