(영문) 대전지방법원 2014.1.8.선고 2013가합102101 판결

The primary purport of the claim: The defendant shall be calculated by the ratio of KRW 200, KRW 00, and KRW 90, KRW 238, and KRW 750 to the plaintiff from April 29, 2009, KRW 109, KRW 761, and KRW 250 from April 2, 2013 to the delivery date of the duplicate of each complaint of this case; KRW 6% per annum from April 2, 2013 to the day of complete payment; and KRW 20% per annum from the following day to the day of complete payment.

L. D. Payment of money.

Preliminary claim: The defendant shall pay to the plaintiff 180, 477, 500 won among them, 90, 238, and 750 won with 90 won per annum from April 29, 2009, 90, 238, and 750 won per annum from June 30, 2012 until the delivery date of a copy of each complaint of this case; and 6% per annum from the following day to the day of complete payment.

Reasons

1. Basic facts

(a) A party relationship;

The defendant is a housing redevelopment project partnership with the approval of establishment on April 14, 2009, and the defendant's telegraph ○○dong, the defendant's overall telegraph * District Housing redevelopment project promotion committee (hereinafter referred to as "promotion committee") is an organization formed with the purpose of promoting housing redevelopment projects by setting a notice of the total size of 41,610 square meters around the mid-gu Seoul Metropolitan Government ** an organization with the aim of promoting housing redevelopment projects by setting a notice of the total size of 184 square meters as the project implementation district. The plaintiff is a specialized urban rearrangement project management entity that entered into a service contract with the promotion committee

(b) Conclusion of a service contract;

1) On September 2, 2008, the Plaintiff entered into a service contract for administrative affairs necessary for the implementation of redevelopment projects (hereinafter “instant service contract”) with the promotion committee around September 2, 2008.

2) In the instant service contract, the Defendant agreed to pay to the Plaintiff the total service cost of KRW 874, 359, and 430 (including additional taxes) calculated as KRW 22,244 per square meter in total floor area to the Plaintiff immediately upon the Plaintiff’s request at each time when the performance of duties is completed as follows.

A person shall be appointed.

C. The defendant's partial payment of service cost to the plaintiff

After obtaining authorization for establishment, the Defendant paid the Plaintiff the down payment of KRW 87, 435, 943 and the first intermediate payment of KRW 183,280, 307 out of KRW 93,041,557, but thereafter, did not pay the service payment any longer.

(d) Termination of services;

Around May 24, 2012, the Plaintiff notified the Defendant of the suspension of services without paying the amount of the service unpaid to the Defendant by June 30, 2012, but at that time the Defendant did not pay the amount of the service even thereafter, and the service was suspended thereafter. The Defendant notified the Plaintiff of the cancellation and termination of the instant service contract according to the deliberation and voting at the general meeting of the shareholders on April 1, 2013, as the Plaintiff requested the return to the Plaintiff on November 15, 2012, but the Plaintiff did not comply therewith.

(e) Related Acts and subordinate statutes;

The entry in the attached Form is as specified in the relevant statutes.

【Uncontentious facts, Gap’s evidence Nos. 1 through 4, Eul’s evidence No. 1-2, Eul’s evidence No. 3, the purport of the whole pleadings

2. The parties' assertion

A. The plaintiff's assertion

1) The primary cause of the claim

A) The Defendant is obligated to pay to the Plaintiff the unpaid KRW 90, 238, 750, and delay damages for the first intermediate payment pursuant to the instant service contract.

B) The Plaintiff provided services to the Defendant for project implementation from April 14, 2009 to June 30, 2012 upon authorization for the establishment of the Plaintiff. In light of the Plaintiff’s period of service performance and details of service, the Plaintiff is obligated to pay KRW 90,238,750 (10% of the total amount) and damages for delay, equivalent to half of the second part payment (20% of the total amount) already provided by the Plaintiff within 14 days after authorization for project implementation is granted.

C) Since the instant service contract was terminated due to the Defendant’s nonperformance of the Defendant’s duty to pay the service cost, the Defendant paid KRW 82,035,227, which is expected profit that the Plaintiff could have gained when the instant service contract was appropriately implemented, to the Plaintiff, but first, claims KRW 19,522,50, which is a part thereof, and damages for delay.

2) Preliminary Claim

Even if the service contract of this case is null and void, since the plaintiff obtained authorization to establish an expensive association due to the plaintiff's service performance and at least 50% of the work for obtaining authorization to implement the project, the defendant is obligated to return to the plaintiff the amount equivalent to 90, 238, 750 won and 50% of the amount of the first intermediate payment, which is 90, 238, 750 won and 50% of the second intermediate payment, and damages for delay.

B. The defendant's assertion

According to Article 14(1)2 and (3) of the instant Act, Article 23(1)2 and (2) of the Enforcement Decree of the instant Act, and Article 28(4) of the Enforcement Decree of the instant Act, a promotion committee shall obtain the consent of a majority of owners, such as land, etc. that consent to the composition of the promotion committee, to select a management company specialized in improvement projects. The consent shall be affixed with a seal imprint and a written consent attached thereto. In addition, according to Articles 21 subparag. 4 and 28(2) of the instant operational regulations, a contract with a management company specialized in improvement projects shall be determined by a resolution of the residents’ general meeting. However, in the case of the instant service contract, a seal imprint was affixed and a written consent accompanied by a certificate of personal seal imprint was not submitted, and thus, the instant service contract is null and void due to its violation of the instant law.

3. Determination

A. Judgment as to the main claim

1) The validity of the instant service contract

A) Requirements for the selection of a specialized management entity

In full view of Articles 14(1)2 and (3), and 17 of the instant Act; Articles 23(1)2(a) and (2), and 28(4) of the Enforcement Decree of the instant Act; and Articles 8(1)2(a) and 21 subparag. 4 of the instant operational regulations, a promotion committee may select a management entity specialized in improvement projects as its business; however, the said business is accompanied by the cost-bearing of the owners, such as the land. Therefore, in order for the promotion committee to select a management entity specialized in improvement projects, the promotion committee’s meeting must obtain the consent of the majority of owners, such as the land, etc., consenting to the former nature of the promotion committee before selecting the management entity specialized in improvement projects. The consent shall be based on written consent with a seal imprint affixed by the management entity specialized in improvement projects, and the selection of a management entity specialized in improvement projects shall be subject to a resolution at the residents’ general meeting (see Supreme Court Decision 2009Da9329, Feb. 25, 2010).

B) Whether it has gone through a resolution of the residents’ general meeting

The defendant asserts that the promotion committee does not have any objection to the service contract of this case after the resolution of the general meeting of residents, and the plaintiff asserted that the promotion committee was selected as a management company of rearrangement projects on July 2, 2008, which was held by the promotion committee.

Therefore, there is no evidence to acknowledge that the general meeting of residents held by the promotion committee on July 2, 2008 that the plaintiff was selected as the specialized management businessman of rearrangement projects, and there is no evidence to acknowledge that the promotion committee selected the plaintiff as the specialized management businessman of rearrangement projects through a general meeting of residents.

C) Whether the owner’s written consent, such as land, was obtained

In selecting the plaintiff as a management contractor for rearrangement projects, there is no evidence to prove that the owner of more than half of the land, etc., such as more than half of the number, affixed a seal imprint and affixed a seal imprint certificate, and there is a written objection. Therefore, in light of the legislative intent of the above-mentioned provisions, the instant service contract is invalid from the beginning in light of the above-mentioned provisions.

As the Act on the Maintenance of Urban and Residential Environments and the Enforcement Decree thereof were amended after the conclusion of the instant service contract, the Plaintiff changed its content to the extent that the requirements for the selection of a management entity specialized in improvement projects, including the land, etc., need not be obtained written consent from minors, and this is based on reflective consideration that the requirements for the selection of a management entity specialized in improvement projects, which was previously demanded, are not consistent with the reality, and that the instant service contract is valid even if the owner did not obtain separate written consent from the landowner, including the land at the time of the conclusion of the instant service contract, in light of the purport of such amendment. However, even if the law and the Enforcement Decree was amended as above, the instant service contract is governed by the Act, the Enforcement Decree, and the operating regulations of the instant case, which was in force at the time of the conclusion of the contract, unless there is any provision that the law and the Enforcement Decree should be retroactively

D) Sub-decisions

Ultimately, the instant service contract is invalid because it does not meet the requirements required by the Act, the Enforcement Decree, and the Operational Rules for the selection of the door management business entity prior to the rearrangement project.

2) Determination on the remainder of the Plaintiff’s assertion

A) The defendant's assertion that he ratified the instant service contract

The Plaintiff asserts that, in the proviso of Article 14 of the Defendant’s Articles of Incorporation, which was enacted at the Defendant’s inaugural general meeting, “if selected by the Film Committee as prescribed by the Operating Rules, it shall be deemed to have been selected in accordance with the instant Articles of Incorporation,” and that, on the premise that the instant service contract is valid, the Defendant ratified the instant reverse contract, on the premise that the instant service contract is valid, to pay the Plaintiff the down payment and the intermediate payment.

In order to recover the defects in the above requirements for written consent as stated above, the ratification should also have a method corresponding to the above requirements for written consent (see, e.g., Supreme Court Decision 2003Da55455, Jun. 24, 2005). There is no evidence to prove that the defendant conducted ratification with a method corresponding to the above requirements for written consent at the inaugural general meeting of the defendant, and there is no evidence to prove that the defendant conducted ratification with a method corresponding to the above requirements. The mere fact that the articles of incorporation was enacted and the owners of land, etc. did not raise any objection after the enactment of the above provisions of the articles of incorporation, it is insufficient to deem that the defendant ratified the above provisions of this case as invalid, and there is no evidence to prove otherwise. Therefore, the original assertion is without merit.

B) The assertion that it cannot be asserted against the restrictions on the unregistered representative authority

The Plaintiff asserts that the instant service agreement is valid since the Plaintiff did not know the aforementioned internal circumstances because the Plaintiff’s written consent that requires a separate written consent from the owners of the land falls under the restriction on the Defendant’s right of representation on the president of the association. The Plaintiff’s written consent falls under the restriction on the right of representation prescribed by statutes, and thus, it cannot be deemed that the said requirement constitutes the restriction on the right of representation that can only be registered to a third party. Therefore, the Plaintiff’s aforementioned assertion is without merit.

C) The assertion of violation of the good faith principle

The plaintiff asserts that the service contract of this case is invalid later by the defendant, despite the plaintiff's provision of considerable services to the defendant, it violates the good faith principle. However, the above relevant statutes that stipulate the requirements and procedures for selecting a specialized maintenance business operator constitute a compulsory provision that cannot be excluded from its application by the party's will. If the plaintiff rejected the establishment of a contract in violation of the compulsory provision on the ground that it is an act of infringement against the good faith principle, and barring any special circumstances, it would be dismissed the above legislative intent, and such assertion cannot be viewed as violating the good faith principle (see Supreme Court Decision 2003Da14812, Jan. 27, 2004, etc.). Thus, the plaintiff's assertion is without merit, since the evidence submitted by the plaintiff alone cannot be viewed as having any special circumstances.

B. Determination on the conjunctive claim

The plaintiff cannot accept the plaintiff's claim on the ground that there is no specific evidence to acknowledge that the plaintiff had had the defendant gain a substantial benefit equivalent to the service cost within the scope claimed by the plaintiff by performing the service business as alleged by the plaintiff.

4. Conclusion

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

Judges

Judges Lee Jae-soo

Judges Hong Jin-young

Judges Cho Jong-soo

Site of separate sheet

Related statutes

[The Act on the Maintenance of Urban and Residential Environments (amended by Act No. 9444 of Feb. 6, 2009; hereinafter referred to as the "Act of this case")]

Article 14 (Functions of Promotion Committee)

(1) Every promotion committee shall perform the following duties:

(3) Where the contents of duties performed under paragraph (1) by the promotion committee are accompanied by the bearing of costs by the owners of lands, etc. or cause any change in rights and duties, the consent of the owners of lands, etc. exceeding the ratio prescribed by the Presidential Decree shall be obtained prior to performing such duties;

Article 17 (Method, etc. of Consent by Owners of Land, etc.)

Matters necessary for the methods and procedures, etc. for computing consent of the owners of lands, etc. under Articles 13 through 16 shall be prescribed by the Presidential Decree.

[Enforcement Decree of the Act on the Improvement of Urban and Residential Environments (amended by Presidential Decree No. 21679 of August 11, 2009, hereinafter referred to as the "Enforcement Decree of this case")]

Article 22 (Duties of Promotion Committee)

The term "business prescribed by Presidential Decree" in Article 14 (1) 5 of the Act means the following matters:

2. Demand for written consent of the owners of land, etc.;

Article 23 (Consent of Owners of Land, etc. to Duties of Promotion Committee)

(1) A promotion committee under Article 14 (3) of the Act shall obtain consent from the owners of lands, etc. in accordance with the standards falling under each of the following subparagraphs, when the details of its duties consisting of bearing the expenses, and the alteration of rights and duties occurs. In such cases, matters other than the matters in the following subparagraphs

shall be subject to the provisions of this section.

2. Matters requiring consent of a majority of the owners of lands, etc. who have consented to organizing the promotion committee;

(a) The specialized management businessman of rearrangement project under Article 69 of the Act (hereinafter referred to as the “specialized management businessman of rearrangement project”);

selection

(2) Article 28 (1) and (4) shall apply mutatis mutandis to the calculation of the number of consenters of owners of lands, etc. under paragraph (1).

Article 28 (Methods, etc. of Calculating Self-denunciation of Owners of Land, etc.)

(4) Consent (including withdrawal of consent) of the owners of lands, etc. under Articles 13 through 16 of the Act shall be made by the method of written consent by using a reduction of the seal imprint, and in such cases, a certificate of the personal seal imprint shall be attached thereto: Provided, That in cases of foreigners, a signature shall be made on a written consent and a certificate of the certificate of the personal seal imprint shall be attached thereto under Article 88 of the Immigration Control Act.

[Operational Rules of the Promotion Committee (hereinafter referred to as the "Operational Rules of this case")]

Article 8 (Consent of Owners of Land, etc.)

(1) Every promotion committee shall obtain the consent of landowners, such as land, in accordance with the standards falling under each of the following subparagraphs under Article 14 (3) of the Act:

2. Matters requiring consent of a majority of owners, such as land, etc. consenting to the composition of the promotion committee;

(a) Selection of the specialized management businessman of rearrangement project under Article 28 (1);

Article 21 (Matters for Resolution at General Meeting of Residents)

The following matters shall be determined through a resolution of the residents' general meeting:

4. Conclusion of contracts with the specialized management businessman of rearrangement project under paragraph 2 of Article 28 (including alteration contracts);

Any change conclusion that does not entail any monetary burden shall be excluded;

Article 28 (Selection of and Contracts for Specialized Management Businessmen of Rearrangement Projects)

(2) The promotion committee shall conclude a separate contract after consulting with the specialized management businessman of rearrangement project selected under paragraph (1) about the overall implementation of the project, such as the scope of his business and bearing of relevant project costs.

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-출입국관리법 제88조

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