(영문) 서울행정법원 2016.1.29. 선고 2015구합58928 판결

A. The Plaintiff’s KRW 50,773,160 as well as 5% interest per annum from December 10, 2013 to January 29, 2016, and 15% interest per annum from the next day to the day of full payment;

B. The Seoul Central District Court No. 9106, Feb. 25, 2003 with respect to No. 1770 of the 5th floor above the 17th floor above the 5th floor above the 75,000,000 won for the Plaintiff at the same time as the registration procedure for cancellation of the establishment of a neighboring mortgage completed on September 28, 2006 by the Seoul Central District Court No. 49604, Sept. 28, 2006;

C. For the Plaintiff KRW 23,243,90 and KRW 18,759,300 among them, the amount calculated by applying each ratio of KRW 4,484,60 from November 17, 2015 to January 29, 2016 and KRW 15% per annum from the next day to the date of full payment.

sub-payment.

2. The plaintiff's remaining claims are dismissed.

3. One-half of the costs of lawsuit shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

4. Paragraph 1 can be provisionally executed.

Purport of claim

The defendant shall pay to the plaintiff 150,259,300 won and 23,759,300 won among them, 126,50,000 won from August 29, 2008; 5% per annum from July 14, 2013 to the date of each of the rulings in this case; and 15% per annum from the following day to the date of full payment.

Reasons

1. Facts of recognition;

A. The defendant is the reconstruction and consolidation project association established with the authorization of establishment on May 18, 1995 to implement the apartment reconstruction project (hereinafter referred to as the "project in this case") on the land of 26,941.70 square meters outside Seoul Special Metropolitan City, Gwanak-gu and 28 lots, and the plaintiff is the owner of five lots B apartments No. 175, Dong 1770 (hereinafter referred to as "the apartment in this case").

B. After the Defendant selected gold Construction Co., Ltd. as a contractor and obtained authorization for management and disposal, the Defendant concluded a sales contract with its partners from August 27, 2008 to August 29, 2008. At the time, the Plaintiff paid KRW 18,759,300 to the Defendant on August 29, 2008. Following the bankruptcy of gold Construction Co., Ltd., the Defendant selected KS Construction Co., Ltd. as a contractor and received the application for parcelling-out from its partners from June 3, 2013 to July 13 of the same year, and the Plaintiff did not make the application for parcelling-out to the Defendant during the above period.

C. On October 13, 2006, the registration of ownership transfer for the apartment of this case was completed for the defendant's future on October 13, 2006, and the plaintiff delivered the apartment of this case to the defendant around October 2006.

D. On February 25, 2003, the Seoul Central District Court (Seoul Central District Court No. 44,400,000 won, the maximum debt amount of 44,400,000 won, the registration of creation of a mortgage, the debtor, the mortgagee, and the bank located in the Republic of Korea, and the Seoul Central District Court (Seoul Central District Court) No. 49604, Sept. 28, 2006, the registration of creation of a mortgage, the maximum debt amount of 45,60,000 won, the debtor, the debtor, and the debtor, the Korean Bank, the non-mortgage Co., Ltd. (hereinafter “the registration of creation of a mortgage of this case”). Each of the instant mortgages of this case was established to secure the repayment of the debt amount of 75,00,000,000 won, which the defendant received in advance from the plaintiff at the time of the loan.

[Ground of Recognition] Facts without dispute, Gap evidence 1-1, Gap evidence 2-3, Gap evidence 4-1, 2-2, Gap evidence 9, Gap evidence 10-1, and Gap evidence 11-1, the purport of the whole pleadings

2. The assertion and judgment

A. The plaintiff's assertion

Since the Plaintiff was a cash clearing agent as of July 14, 2013, the Plaintiff is obligated to pay the appraised amount of KRW 126,50,000 for the instant apartment, KRW 18,759,300 for the sales contract paid by the Plaintiff to the Defendant, KRW 5,000 for the Defendant’s relocation expenses, and KRW 150,259,300 for the Defendant’s total of KRW 5,000 for the sales contract paid by the Plaintiff to the Defendant, and damages for delay.

B. Determination on the obligation to pay the settlement money

1) Whether the obligation to pay the settlement money arises

Pursuant to Article 47 (1) 1 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (hereinafter referred to as the "Urban Improvement Act"), a project implementer shall liquidate in cash land, buildings, or other rights within 150 days from the date when the owner of land, etc. fails to apply for parcelling-out according to the procedures prescribed by Presidential Decree. Here, when the obligation to pay liquidation money arises to the owner of land, etc. who has failed to apply for parcelling-out, the time when the obligation to pay liquidation money arises shall be deemed to be the following day of the expiration of the period of application for parcelling-out prescribed by the project implementer pursuant to Article 46 of the "Urban Improvement Act" (see Supreme Court Decision 2008Da3

The plaintiff is a cash liquidation partner due to the failure to apply for parcelling-out within the period of application for parcelling-out notified by the defendant (from June 3, 2013 to July 13 of the same year), so the defendant's obligation to pay the liquidation money to the plaintiff was occurred on July 14, 2013, following the expiration date of the period of application for parcelling-out.

2) Amount of settlement money

The appraisal value of the apartment of this case is 125,773,160 won and damages for delay are not disputed between the parties. Unless there are special circumstances, the defendant is liable to pay to the plaintiff 125,773,160 won and damages for delay.

3) Judgment on the defendant's defense

A) Summary of the defense

(1) The amount of KRW 89,440,00,00, the secured debt amount of each of the instant mortgages, shall be deducted.

(2) The defendant paid interest on the moving expenses on behalf of the plaintiff to the financial institution, and the amount equivalent to the interest paid by the defendant on behalf of the plaintiff must be deducted.

(3) The Defendant is obligated to pay liquidation money from the Plaintiff simultaneously with the cancellation of the registration of establishment of each of the instant establishments.

B) Determination

(1) Determination of the maximum debt amount defense regarding the registration of the establishment of a neighboring mortgage

The plaintiff was given a loan of KRW 75,00,000 from the bank in Korea. According to the above facts, the plaintiff was given a loan from the bank in Korea, and the creditor is the creditor, as the creditor is the bank in Korea, and since the debtor is the plaintiff, the defendant who is not directly related to the claim and obligation cannot deduct the loan from the lawsuit in this case.

Therefore, this part of the defendant's defense is without merit, and on the other hand, the provision of cash settlement (Evidence (Evidence (Evidence (No. 9) under the management and disposal plan cited by the defendant does not affect the plaintiff as it was resolved on September 7, 2013 after the plaintiff became a cash clearing agent.)

(2) Determination on the defense of deduction of financial expenses for moving expenses

(A) The reconstruction consolidation project association established under the Urban Improvement Act and its members

Legal relations are governed by relevant Acts and subordinate statutes or the articles of incorporation, resolution of a general meeting of partners or an agreement between a cooperative and a cooperative. Unless otherwise stipulated by the relevant provisions or resolution or agreement, even if a cooperative member loses his/her status as a cooperative member, a cooperative member does not naturally have an obligation to return benefits obtained in the capacity of a cooperative member (see, e.g., Supreme Court Decision 2009Da32850, 32867, Sept. 10, 2009).

(B) According to the evidence mentioned above, evidence mentioned above and evidence No. 13, the plaintiff 2013.

7. 14. The fact that the Defendant acquired the position of a liquidation agent, and the Defendant paid the interest on the moving expenses of union members to the Bank of Korea on behalf of the union members until March 2011, but thereafter, the Plaintiff paid the interest on the moving expenses.

On the other hand, the plaintiff, as a member of the defendant's association, provided the defendant with real estate owned by the defendant as a member of the association, and acquired profits equivalent to the interest on the moving expenses from the member's position. However, inasmuch as there is no provision that the plaintiff should return the interest on the moving expenses paid to the plaintiff retroactively if the plaintiff lost a member's status, or there is no evidence to prove that there was a resolution or agreement, the plaintiff shall not be held liable to return the interest on the moving expenses already acquired as a member's status to the defendant as a matter of course. In addition, in light of the fact that the plaintiff's duty as a member of the association, such as providing the real estate owned by the plaintiff for the implementation of the defendant's business, while it becomes impossible to gain profits from the business of the association by losing a member's status, it shall not be deemed that the plaintiff violated the principle of equity by holding the interest on the moving expenses as it is, or that the remaining members of the association incurred a loss equivalent to the interest on the loan.

However, even if the Plaintiff is not obligated to return retroactively the interest equivalent to the interest on the moving expenses that the Plaintiff acquired as a member, it is reasonable to limit the amount of interest on the moving expenses to the period during which the Plaintiff maintains its status as a member, i.e., paying the interest on the Plaintiff’s moving expenses on behalf of the Plaintiff, under the premise that the Plaintiff maintains its member’s status. As such, since the Plaintiff lost its member status, the Defendant is not obligated to pay the interest on the Plaintiff’s moving expenses from the date on which the Plaintiff lost its member status to the interest on the Plaintiff’s moving expenses, ii) if the Plaintiff is exempted from the interest on the loans that he/she lost its member status, the interest would ultimately be imposed on the owners of lands, etc. whose member remains. In light of the fact that the Plaintiff’s holding of interest equivalent to the interest on

However, as seen above, the plaintiff has borne interest on the moving expenses after he/she lost his/her status as a member, and therefore there is no interest on the moving expenses to be deducted from the liquidation amount.

(3) Determination on simultaneous performance defenses

(A) Land owner’s land, etc. in a cash settlement under Article 47 of the Urban Improvement Act

Where the registration of transfer of ownership and the transfer of a mortgage are not cancelled but the establishment of a mortgage is not cancelled, the reconstruction association may refuse payment based on the right of defense of simultaneous performance only for liquidation amount equivalent to the amount of the secured debt determined within the scope of the maximum debt amount or the maximum debt amount of the mortgage not cancelled (see Supreme Court Decision 2012Da14776, Nov. 19, 2015).

(B) According to the evidence No. 11-1 of this case, the facts revealed that the secured obligation of each of the instant mortgages was 75,000,000 won due to the establishment registration of each of the instant mortgages. The Defendant may refuse to pay to the Plaintiff the term "amount of KRW 75,00,000,000, which is the secured obligation of each of the instant mortgages, for simultaneous performance. Therefore, the Defendant's defense on this part is with merit within the scope of the above recognition.

4) Sub-committee

Therefore, the Defendant is obligated to pay 50,773,160 won (i.e., 125,773,160 won - 75,000,000 won) calculated by deducting the secured amount of each of the instant mortgages from the liquidation amount (i.e., 125,773,160 won - 75,000,000 won) and to pay 75,000 won to the Plaintiff at the same time as the Plaintiff’s registration procedure for cancellation of each of the instant mortgages from July 14, 2013, which was the following day after the Plaintiff lost its membership, until January 29, 2016, which was the date of this decision, for dispute as to the existence and scope of the Defendant’s obligation to perform its obligations.

C. Determination on the duty to return the sales contract and the duty to return the relocation expenses that the Defendant received in advance

1) The Defendant received KRW 18,759,300 from the Plaintiff, and the Plaintiff paid KRW 5,000,000 for the purpose of establishing the right to collateral security among the moving expenses of KRW 75,00,000,000. According to the evidence and the purport of the whole pleadings as seen earlier, the expenses incurred in completing the registration of establishing the right to collateral security at the maximum debt amount of KRW 90,000 are 515,400. According to the above facts, the Defendant should return the amount obtained by deducting the cost of establishing the right to collateral security from the sales contract and the moving expenses paid in advance to the Plaintiff as unjust enrichment, and the amount is 23,243,90 won [=18,759,300 won + 4,484,600 won + 5,000 won -5,000 won].

2) Sub-committee

Since the obligation to return unjust enrichment is an obligation without a fixed period for performance, the obligor is liable for delay only when he/she receives a request for performance (see Supreme Court Decision 2009Da24187, Jan. 28, 2010). As to KRW 23,243,90, and KRW 18,759,300, which is the day following the delivery date of the copy of the complaint in this case, for KRW 4,484,60, which is April 4, 2015, the day following the delivery date of the copy of the complaint in this case, and for KRW 4,484,60, which is the day following the delivery date of the copy of the request for change of the purport of the claim and the cause of the claim, each of the Defendant is liable to pay damages for delay at the rate of 5% per annum prescribed by the Civil Act and 15% per annum prescribed by the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings from the next day to the day of full payment.

3. Conclusion

Therefore, the plaintiff's claim of this case is accepted within the scope of the above recognition, and the remaining claim is dismissed as it is without merit. It is so decided as per Disposition.