2017Na59642 Return of down payment, etc.

A

B Regional Housing Association

Suwon District Court Decision 2016Da38739 decided February 9, 2017

December 8, 2017

January 19, 2018

1. The defendant's appeal is dismissed.

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

1. Purport of claim

The defendant shall pay to the plaintiff 34,255,00 won with 5% interest per annum from May 13, 2016 to the delivery date of the payment order in this case, and 15% interest per annum from the next day to the full payment date.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Quotation of judgment of the first instance;

The reasons for this court are as follows: "The defendant may change the size of the apartment and the number of the units in the third 7th 7th son of the judgment of the court of first instance (the defendant can purchase the apartment at the stage of establishing the association according to the revision of the business plan if he purchased the apartment at the stage of establishing the association. The plaintiff merely entered into a contract for joining the regional housing association at the stage of establishing the association and purchased the apartment of this case 107 Dong 503, and the defendant may supply one unit of the apartment of this case to the plaintiff. Thus, the defendant's obligation under the contract of this case is not impossible. The defendant's assignment of the apartment complex of this case at the second 2,3 and 5, and the defendant presented the layout limit of the apartment complex of this case at the court of first 200, the defendant's additional purchase price of the apartment complex of this case at the 0th 5th 5th m2th m2th m2th m2th m., the defendant's additional purchase price of this case at the 5th m.

2. Additional determination

A. The assertion

The defendant asserts that the contract of this case is a contract to join the association, which is already implemented as a contract to join the association, and that the plaintiff, a member of the association, had not gone through the procedure of withdrawal, as prescribed by the rules of the association, in order to escape from his position. In addition, even though the plaintiff offered a contract to join the association, the non-operating cost is the money of the nature that the association paid to the acting agent as remuneration for the handling of delegated affairs, on behalf of the union members, because it is the money of the nature that the association paid to the acting agent as an acting agent.

B. Determination

1) Determination on the assertion regarding the procedures for withdrawal from partnership

However, the instant contract is concluded on the premise that the Defendant sells the instant apartment units 107 Dong 503 to the Plaintiff, and as seen earlier, as the Defendant becomes unable to sell the said apartment units to the Plaintiff, the said agreement is deemed to have become impossible to perform due to a cause attributable to the Defendant. As long as the Defendant has the duty to sell the said apartment units, it is difficult to deem that the instant contract has been terminated as the Defendant alleged in the allegation of the Plaintiff. As long as the Defendant has the duty to sell the said apartment units, it is difficult to deem that the instant contract has been terminated, and even if the Defendant cancels the instant contract on the grounds of the Defendant’s nonperformance of obligation, it is difficult to deem that it ought to undergo the procedure for withdrawing the association members in accordance with the

2) Determination on the assertion regarding business promotion expenses

Even if the money paid by the Plaintiff to the Defendant as an agent for business promotion expenses under the instant contract was paid as remuneration for the delegation of business affairs to the agent, this is merely based on the delegation contract between the Defendant and the agent, and the duties performed by the Defendant or the agent are only the Defendant’s duties, but not deemed to have been delegated to the Defendant or the agent, and therefore, the Defendant’s assertion on this premise is without merit.

3.In conclusion

Therefore, the decision of the first instance court is justifiable, and the defendant's appeal is dismissed.

Justices Kim Don-man

Judges Park Jong-sung

Judges Park Borrower-hee