2013 Gohap6984 Compensation, etc.

1.

2.

3.

4.

5.

6.

7.

8.

( Deletion)

August 19, 2014

September 23, 2014

1. All of the plaintiffs' claims are dismissed.

2. The costs of lawsuit are assessed against the plaintiffs.

The defendant shall pay to the plaintiff 56,982,526 won, 36,39,895 won to the plaintiff, 18,252,145 won to the plaintiff, 10,640 won to the plaintiff, 5,842,996 won to the plaintiff, 10,957 won to the plaintiff, and 9,37,138 won to the plaintiff, 8,439,377 won to the plaintiff, and 20% per annum to the day of full payment from the day following the day of delivery of the duplicate of the complaint of this case to the day of full payment.

1. Basic facts

The following facts shall not be disputed between the parties, or may be recognized by Gap evidence Nos. 1 through 10 (including paper numbers; hereinafter the same shall apply). Eul evidence No. 1 and the whole purport of pleadings.

A. (hereinafter referred to as "each of the cooperatives of this case") is a cooperative which has promoted a project to build apartment houses (hereinafter referred to as "project of this case") in a single unit (hereinafter referred to as "the project of this case"). The plaintiffs are the plaintiffs, persons who have acquired rights from members, and the defendant is the company which has entered into a contract for construction work with each of the cooperatives of this case.

B. Until now, the Plaintiffs entered into a supply contract with each of the instant cooperatives on the supply of 32 square-type 1 household units (hereinafter referred to as “instant sales contract”) among the apartment buildings to be constructed as the instant project, and the Nonparty (hereinafter referred to as “the Nonparty”) participated in the instant sales contract as an executor, and the Defendant, as the contractor, signed and sealed the instant sales contract, as the contractor, signed and sealed the instant sales contract.

The main contents of the instant sales contract are as follows.

Article 1 [General Provisions] of the Supply and Cooperative Agency Agreement (A.I.S.) (A.S.) (A.S.) is a housing partner qualification under Article 42 of the Enforcement Decree of the Housing Construction Promotion Act, who is a housing partner qualification under Article 42 of the Enforcement Decree of the Housing Construction Promotion Act, shall delegate all of the business affairs to the housing partner and shall execute the project by proxy, and Gap (A.S.) shall supply one apartment household to the household under the area of inspection for use only to the household that has fully paid the contributions and the operating expenses of the association according to the construction contract and the schedule of the project.The third member's contributions shall be paid as follows.3) The contributions shall, in principle, be paid to the City Corporation's account and shall be managed by the Cooperative under the responsibility of the Corporation, and the contributions deposited other than the following accounts shall not be recognized as contributions in any case.The bank name: the bank account number: Article 10 of the Deposit Agreement / [A.C.) shall be prepared for the purpose of proving that each of the reasons attributable to the partnership is liable and the partnership's agreement.

C. Each of the instant associations concluded a construction contract with the Defendant with respect to the construction work that newly constructs apartment units in the instant project site with the amount of KRW 58,129,340,000. The main contents are as follows.

제1조 [총칙]공사도급인(이 사건 각 조합. 이하 '갑'이라 한다) 및 갑의 연대보증인 겸 시행대행사(이하 •병•이라 한다)와 공사수급인(피고. 이하 •을'이라 한다)은 서로 협력하여 신의성실의 원칙에 따라 이 계약을 수행한다.제2조 [사업내용]갑은 사업부지의 제공과 사업추진 및 인허가 엄무의 주체인 시행자로서 병에게 사업시행 대 행업무를 위임하며. 을은 시공자로서 건축시설의 신축을 책임지며 제반 사업추진 잋 인•허가업무를 지원하여 쾌적한 주거공간을 제공하는 것을 본 사업의 내용으로 한다.

D. At around 2003, the Defendant prepared and delivered the following construction and the letter of guarantee for fund management (hereinafter “the letter of guarantee in this case”).

3. The application amount and subscription amount to be paid by several members of the cooperative will be used only for the operation and construction works of the cooperative.5. When the contract for construction works is terminated or cancelled due to the reasons attributable to our company (including the termination of the contract for construction works), necessary measures such as corresponding compensation for damages, etc. shall be taken so that any damage may not occur to the members of the cooperative.

E. After the conclusion of the instant sales contract, the Plaintiffs received part payments for the payment of part payments, and the Defendant jointly and severally guaranteed the Plaintiffs’ part payments obligations, and the Defendant prepared and delivered to the Defendant the same undertaking as Daom (hereinafter “instant undertaking”).

1. We shall repay to the National Bank on February 2006 the sum of the loans of each member of the instant association (including those of the intermediate payments received by each member on February 17, 2007) provided by each member of the association. 2. On the part payment under Paragraph 1, we shall refund to each member of the association the sum of the loans of intermediate payments paid by each member of the association on the part payment (including those paid by each member of the association on February 17, 2007). However, the interest payment of the outstanding interest shall be excluded.

F. Establishment of each of the instant associations and substantial operation thereof.

The project of this case was promoted, with the knowledge of the fact that it was impossible to build an apartment in the project site of this case, 2nd is the charge that, as if the new construction of apartment was possible, the members of each association of this case were accused of entering into a supply contract by deceiving members of each association of this case and obtained the contribution through deception. On February 1, 2013, the appellate court was convicted of a conviction in the appellate court and became final and conclusive through a final appeal.

G. Each of the instant associations failed to obtain authorization for the establishment of a regional housing association from the Plaintiff, and failed to obtain the approval for the housing construction project plan for the instant project, and the Defendant did not begin the instant construction project.

2. The plaintiffs' assertion

Although the project site of this case was not a land that could actually proceed with the local housing project, the defendant did not confirm it properly, and the defendant made the members recruit advertisement and let them substitute part payments, thereby causing damages equivalent to the interest on intermediate payment and loan interest to the plaintiffs. The defendant, who is a specialized company related to the construction of apartment, is fully aware of the above facts if he paid little attention to it, and was able to verify it properly to the members, and thereby, caused the plaintiffs to suffer damages equivalent to the principal and interest payment on the loan, and thus, he is liable to compensate the plaintiffs as compensation for tort.

In addition, according to the letter of promise of this case prepared by the defendant, the defendant is obligated to pay the loan principal and interest and the amount equivalent to the loan interest.

3. Determination

A. Determination as to tort liability

In order to establish a tort due to omission, the duty to act must be premised on the duty to act. The duty to act should be recognized only for those who are deemed to have special status to protect the other party's legal interests or to prevent infringement of his/her legal interests, such as cases where it is deemed that there is a responsibility to take measures to prevent risk factors that may cause harm to the other party or damage caused by other person's act under individual and specific circumstances in the position to manage and supervise the other party's act, etc. (see, e.g., Supreme Court Decision 2010Da8709, Apr. 26, 2012). Thus, in order to ensure that the defendant has a duty to notify the other party that he/she cannot construct an apartment in the business site of this case beyond the status of the City Corporation, at least the position of the joint project proprietor or the executor of the sales contract of this case should be acknowledged as a partnership relationship under the Civil Act between each association and the association of this case.

The facts that the Defendant participated in the preparation of the contract for the sale in this case and received the contribution paid by its partners under the contract for the sale in this case to the account under the name of the Defendant, the fact that the instant guarantee was prepared and issued to the association around 2003, and the fact that the instant certificate was prepared and issued to the association 20, are recognized as above.

On the other hand, the following facts revealed by comprehensively taking account of the evidence adopted earlier and the purport of the entire arguments, namely, ① the Defendant indicated and affixed the status of the contractor at the end of the instant sales contract. However, in the instant sales contract, the Plaintiffs are all affairs, such as the establishment of association and association organization, management of association members, building and water lot, purchase of land, selection of related enterprises such as construction works and construction design offices, supervision of construction contracts and construction works, and management of shares of each of the instant housing associations.

Each association is delegated to each of the associations, and each of the associations of this case is entrusted to the executing agencies of all of the business affairs of the association of this case. Each of the associations of this case and each of the associations of this case is entrusted to the executing agencies of the business affairs of the association of this case. It is stipulated that each of the associations of this case, members of the association, and executing agencies of this case shall compensate each other as prescribed by the relevant Acts and subordinate statutes (Articles 5 and 10), and there is no content on the rights and obligations of the defendant who is the contractor of this case. In addition, in the sales contract of this case, the contract of this case provides that the plaintiffs who are union members of this case shall delegate all of the rights of the association of this case to each of the associations of this case and shall not oppose the defendant who is the executing agencies and the contractor of this case, respectively (Article 13), and the contract of the construction contract of this case shall be responsible for the construction of building facilities as the contractor, and there is no evidence to acknowledge that the defendant did not have any legal interest or interest in the project of this case.

Therefore, this part of the plaintiffs' assertion, which is based on the duty of disclosure to the defendant, is without merit.

B. Determination on claims under the instant agreement

The facts that the Defendant prepared and delivered the instant undertaking to the 2 by February 17, 2007, stating that the intermediate payment and the interest on loans will be repaid to the 2 by February 17, 2007 are as follows.

However, in light of the following facts that can be recognized by comprehensively taking into account the evidence adopted earlier and the entire purport of the statements and arguments set forth in subparagraphs 3 and 4 above, the defendant is obligated to pay the plaintiff an intermediate payment and interest on the loan based on the letter of commitment.

A, which is not sufficient to recognize the room, and otherwise there is no evidence to acknowledge it, and which is a written statement of Applicant A.

12 The statement of evidence and testimony of a witness shall be made by individual members against the defendant against part payments, etc.

It shall have the right to receive a refund, but it shall not be used as evidence as it is difficult to believe that it is inconsistent with the content of the disposition document prepared by the person.

① The other party to the instant promise is not a member of each association of this case.

In light of the fact that the plaintiffs and the above union members are union members, and it is unclear whether the plaintiffs are 206 members who were to receive intermediate payments and interest on the loan from the defendant on the letter of undertaking of this case, and that Article 13 of the contract of this case provides that the plaintiffs who are union members cannot oppose individually the defendant who are the executing agency and the contractor by entrusting all rights to each union of this case. Thus, it cannot be deemed that the plaintiffs who are union members are entitled to have the right to claim intermediate payments and interest on the loan of this case.

② In addition, the instant undertaking was made up according to the “written withdrawal” with respect to the Defendant during the process of transferring the instant undertaking around 20 the actual operator of the exercise of the substitute. The drafting of the instant undertaking is one of the matters agreed to resolve the issue of the withdrawal of union members following the transfer of the instant undertaking, and it is difficult to deem that the Defendant’s obligation to perform the instant undertaking arises regardless of the said withdrawal note. In other words, it is difficult to deem that: (a) the instant undertaking was returned from the date to be used only for the refund of the land price paid by union members; and (b) the previous partner was urged to collect a withdrawal note from the existing union members to reduce the remaining number of union members by not more than 20 members; and (c) the Defendant was to draw up and set up the instant undertaking. As such, in order to cause the Defendant’s obligation to perform under the instant undertaking

It seems that the withdrawal of a union member should be premised on the withdrawal of the union member.

In full view of the fact that there is no evidence to prove that the above KRW 00 million was paid without using it for the withdrawal of a member, and there is no evidence to prove that the withdrawal of a member pursuant to the above withdrawal letter was smoothly conducted. The withdrawal of a member pursuant to the above withdrawal letter

Unless there is an obligation, it is difficult to view that the Defendant’s obligation to return the intermediate payment, etc. under the instant promise still exists.

Therefore, this part of the plaintiffs' assertion is without merit.

4. Conclusion

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

Judges Kim Dong-jin

Judges Kim Jae-in

Judge Park Jong-chul