Plaintiff (Law Firm Oyn, Attorneys Yoon Jong-soo et al., Counsel for plaintiff-appellant)

Defendant (Attorney Cho Jong-hwan, Counsel for defendant-appellant)

October 28, 2011

Seoul Central District Court Decision 2010Gahap21028 Decided June 8, 2011

1.Paragraphs 1 and 2 of the judgment of the first instance, including the preliminary claim expanded at the trial, shall be amended as follows:

A. On June 16, 2003, the Defendant implemented the procedure for applying for permission of land transaction on the ground of the sale contract on June 16, 2003 with respect to each of the real estates listed in the separate sheet to the Plaintiff.

B. The plaintiff's main claim and the remainder of the conjunctive claim are all dismissed.

2. The total costs of the lawsuit shall be five minutes, and such three minutes shall be borne by the plaintiff and the remainder by the defendant.

1. Purport of claim

The Defendant, as the Plaintiff

(a) In the case of KRW 1,200,000 and KRW 20% per annum from July 15, 2010 to the day of full payment, with respect to KRW 455/1,085 shares among the real estate listed in the separate sheet 1,2,3,4 and the 5 real estate listed in the separate sheet 1,55/1,085 shares among the 5 real estate listed in the separate sheet 1,205;

B. Preliminaryly, 1/2 shares of each of the respective real estate listed in the separate sheet were paid an amount equivalent to 1/20% per annum from July 15, 2010 to the day on which full payment is made, with respect to 1/2 shares of each of the real estate listed in the separate sheet as of June 16, 2003. (2) From July 15, 2010 to the day on which the sale contract was concluded, 200,000 won was made, and 35/1,085 shares of each of the real estate listed in the separate sheet as of May 6, 2005, or from June 16, 2003 to the day on which the sale contract was concluded. (In relation to the claim for performance of the initial land transaction contract, the Plaintiff, as to the claim for performance of the performance of the claim for performance of the execution of the land transaction, 45/1,085 shares of each of the real estate listed in the separate list list as to the claim for performance.

2. Purport of appeal

Plaintiff: To modify the first instance judgment as stated in the purport of the claim.

Defendant: The part against the Defendant among the judgment of the first instance court is revoked, and the Plaintiff’s claim corresponding to the revocation is dismissed.

1. Conclusion of a sales contract with the plaintiff, etc. and the non-party 1, transfer of ownership in the name of the defendant

This Court's explanation concerning this part is the same as the entry of "1. Basic Facts" in the judgment of the court of first instance, in addition to the fact that "14 lots" in Part 2 of Part 4 of the judgment of the court of first instance is "15 lots". Thus, it shall be cited in accordance with the main sentence of Article 420 of the Civil Procedure Act

2. The parties' assertion and judgment

A. Judgment on the main claim

1) The plaintiff's assertion

On May 6, 2005, the Defendant agreed to distribute five parcels of land to the Plaintiff among each of the instant lands (number 1, 6, 5, 7, 8 omitted) in Yeongdeungpo-gu, Young-gu, Young-gu, Daegu-si, (number 1, 6, 7, and 8 omitted). After that agreement, the Defendant sold the said five parcels of land to a third party and paid 1/2 out of the purchase price he received. The Defendant decided to distribute the said land (number 9 omitted) to the Plaintiff instead of selling the land (number 7 omitted) to Nonparty 4, and agreed to distribute the said land to the Plaintiff out of the said (number 2 omitted), 45/1,085 shares out of the land (number 2 omitted).

Therefore, pursuant to the above agreement, etc. on May 6, 2005, the Defendant is obligated to perform the land transaction permission procedure for 455/1,085 shares out of the land (number 1, 6, 9, 8 omitted) of the same subparagraph (number 2 omitted) as the Plaintiff pursuant to the same agreement, etc., and the Defendant is obligated to pay KRW 135,00,000 out of the proceeds from the sale of the land (number 5 omitted), and the delay damages therefrom.

2) Determination

A evidence No. 8 without the Defendant’s signature or seal, evidence No. 18-2 of the evidence No. 18-2 and testimony by Nonparty 2 of the first instance trial alone cannot be acknowledged that there was an agreement between the Plaintiff and the Defendant on the allocation of shares as alleged by the Plaintiff, and no other evidence exists to acknowledge it otherwise.

Therefore, the plaintiff's primary claim of this case is without merit.

B. Determination on the conjunctive claim

1) The plaintiff's assertion

On June 16, 2003, the Defendant’s mother, Nonparty 3, and Nonparty 2 purchased 7,464 square meters of 1,128,50,000 square meters of 10,312 square meters of forest land (number 4 omitted) owned by the Nonparty 1 in the land transaction permission zone, from Nonparty 1, the Plaintiff, Nonparty 3, and Nonparty 2 purchased 7,464 square meters of 1,128,50,000, and the Plaintiff agreed to acquire 1/2 of the said purchase subject matter. The Defendant succeeded to the seller’s status of the instant sales contract concluded between the Plaintiff, etc. and Nonparty 1.

Therefore, according to the instant sales contract, the Defendant is obligated to perform the land transaction permission procedure for each one-half portion of the real estate listed in the separate sheet to the Plaintiff. Moreover, as the said (number 5 omitted) land sold to the Plaintiff was sold again to Nonparty 5 and 6 and was received, the Defendant is obligated to return the price to the Plaintiff, as unjust enrichment, the amount of KRW 135,00,000, and the delay damages therefrom (it does not clearly state that the Plaintiff, while modifying the claim and the cause of the claim at the trial, sought a return of money based on the “illegal enrichment” (it stated in both the primary claim and the conjunctive claim, and stated the purport of seeking a monetary payment in both of the primary claim and the conjunctive claim, and the purport of seeking a monetary payment based on the “illegal enrichment” on April 21, 2011, which was submitted by the first instance court, and thus, the Plaintiff’s claim as above.)

2) Determination

A) Determination on the claim for performance of the procedure for applying for land transaction permission

(1) Whether the Defendant succeeded to the seller's status

The defendant asserts that he did not succeed to the seller's status from Nonparty 1.

Therefore, the following circumstances revealed by the evidence as follows. ① the Defendant entered into a contract on behalf of Nonparty 1 residing in the U.S. at the time of the conclusion of the contract, namely, (1) the sales contract and the date of the contract, (2) the Defendant entered into a sales contract with Nonparty 1 at the same time, and (3) the ownership transfer registration for 7,464/10,312 of the land before subdivision. At the time, the Plaintiff entered into the contract on the above ownership transfer registration and 19,02,150 of the total amount of the registration tax and the acquisition tax, and 80 of the land owned by the Plaintiff and Nonparty 2 at 0 on the above 80 of the land. The Defendant did not immediately delegate the authority regarding the permission for development of the land before subdivision, construction and housing site development to the Defendant, and (4) the Plaintiff did not return the original receipts that the Plaintiff paid the down payment under the contract to Nonparty 2 at 80 on the above 70 of the land before subdivision, and (5) the Plaintiff did not return the construction permit to the Plaintiff (2).

(2) Judgment on the defendant's defense

First, the Defendant asserts that even if the Defendant had taken over the status of a seller, the Defendant’s acceptance of the status of the Defendant is valid only with the permission of land transaction between the Plaintiff, etc. and Nonparty 1, and there was no land transaction permission for the sales contract between the Plaintiff and Nonparty 1. ② The Plaintiff, the buyer of the instant sales contract, was unable to pay the remainder, and accordingly, Nonparty 1, the seller, transferred the ownership of the Defendant as the Plaintiff did not continue to maintain the sales contract with the Plaintiff. Accordingly, the instant sales contract became null and void.

However, even if considering the legislative intent of the land transaction contract permission system under the National Land Planning and Utilization Act (prevention of speculative transactions, etc.), in cases where a third party decides to take over the status of a seller, unlike the cases where a seller, a buyer, and a third party takes over the status of a buyer, it is unlikely that an speculative transaction will take place through unregistered pre-sale, etc., and thus, it cannot be said that an agreement on the acquisition of status of a seller takes effect only with permission of the competent administrative agency for a sales contract between the first seller

In addition, as seen earlier, 100 million won paid by the Plaintiff as down payment at the time of the conclusion of the instant sales contract is not returned; 2) After the conclusion of the instant sales contract, the registration of partial transfer of ownership in the name of the Defendant has been completed; division of land through alteration of form and quality; registration of construction and preservation of housing in the name of the Plaintiff’s wife on some of the land of the divided land; and the Defendant maintained mutual cooperative relations between the Plaintiff and the Defendant in the process of lease of the housing; etc., it is difficult to deem that Nonparty 1, the Defendant’s mother, did not continue to continue to maintain the instant sales contract with the Plaintiff on the ground of the Plaintiff’

Therefore, the defendant's above assertion that the sales contract of this case was finally null and void is not acceptable.

Next, the defendant asserts that the plaintiff should have filed the lawsuit of this case with the other co-owners in order to claim that the plaintiff acquired the status of the seller under the contract of this case from the non-party 1 because the non-party 3 and the non-party 2 are buyers under the contract of this case.

However, the defendant's above assertion cannot be accepted unless there is any evidence to prove that the plaintiff formed a Dong company with the above non-party 3 and 2 and purchased the land before the division of this case.

(3) Sub-determination

Therefore, the defendant is obligated to implement the procedure for applying for land transaction permission for the sale as of June 16, 2003 (the plaintiff's share in the object of the instant sales contract) with respect to shares in the attached list 3,732 shares [=7,464/10,312 (the share corresponding to the object of the instant sales contract among the land before division)] x 1/2 (the plaintiff's share in the object of the instant sales contract as of June 16, 2003)] of each real estate listed in the attached list as requested by the plaintiff (the defendant did not change the name and quality of the land as of March 11, 2003, because there was no change in the name of the person who has the permission to change the form and quality, the plaintiff cannot make any claim against the defendant pursuant to the above subparagraphs. However, it cannot be recognized that the statement in Gap evidence No. 11 alone made a promise not to demand the performance of the procedure for applying for land transaction permission under the instant sales contract after it changed the name of the plaintiff.)

B) Determination on the claim for restitution of unjust enrichment

The Defendant, at the time of selling the land (number 5 omitted) to Nonparty 5 and 6, sold to Nonparty 6, there is no dispute between the parties that the Defendant was the owner on the registry of the above land. Thus, even if the Defendant again sold the above land sold to Nonparty 5, etc. to the Plaintiff and received the price, it cannot be deemed as a case where the Plaintiff’s claim for return of unjust enrichment was made without any legal ground. Therefore, the Plaintiff’s claim for return

3. Conclusion

Therefore, all of the plaintiff's main claims of this case are dismissed as it is without merit, and the conjunctive claims are accepted within the scope of the above recognition, and the remainder is dismissed as it is without merit. The judgment of the court of first instance is unfair with some conclusion and it is so decided as per Disposition by the decision of the court of first instance including the above extended part, since the plaintiff extended the conjunctive claims at the trial.

[Attachment]

Judges Kang Il-won (Presiding Judge) Kim Sung-soo-type