2012Na47236 Damage, etc.

Dong-based Construction Corporation

Korea Land and Housing Corporation

Suwon District Court Decision 201Gahap934 decided May 30, 2012

November 21, 2013

December 19, 2013

1. Based on the Plaintiff’s appeal, the judgment of the first instance court is modified as follows.

A. The defendant shall pay to the plaintiff 7,190,006,210 won with 6% interest per annum from February 11, 201 to December 19, 2013, and 20% interest per annum from the next day to the day of complete payment.

B. The plaintiff's remaining claims are dismissed.

2. The defendant's appeal is dismissed.

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

4. Paragraph 1(a) of this Article may be provisionally executed.

Purport of claim

The defendant shall pay to the plaintiff 13,569,533,602 won with 6% interest per annum from February 11, 201 to the day on which a duplicate of the complaint of this case was served, and 20% interest per annum from the next day to the day of complete payment.

Purport of appeal

[2] Of the judgment of the court of first instance, the part against the plaintiff corresponding to the amount ordered to pay is revoked. The defendant shall pay to the plaintiff 7,865,251,176 won with 6% interest per annum from February 11, 2011 to the date of delivery of the main complaint of this case, and 20% interest per annum from the next day to the date of full payment.

[Defendant] The part against the defendant among the judgment of the first instance is revoked, and the plaintiff's claim corresponding to the revocation part is dismissed.

1. Case summary

In this case, the plaintiff purchased a construction site for apartment housing site development zone Namyang-ju B from the defendant, but it was impossible to construct apartment houses that meet the upper limit of floor area ratio and household number at the time of bidding due to the error in design proposal presented by the defendant at the time of bidding, and the time of use of land purchased by the plaintiff was delayed for not less than ten months, the defendant is obligated to compensate the defendant for damages equivalent to 9,384,427,536,519,000 + sales management expenses + 2,547,90,166 won + 360,3650,3650, 3646, 364, 467, 3650, 466, 306, 306, 465, 306, 306, 465, 306, 306, 167, 4605, 360, 467, 467, 167, 365, 360

The judgment of the court of first instance partially accepted the Plaintiff’s claim (the total sum of KRW 1,783,535,716 and the total sum of KRW 3,920,746,710 due to nonperformance of the obligation, and the total sum of KRW 5,704,282,426 and delay damages). The remainder was dismissed, and the Plaintiff and the Defendant appealed against each of the lost parts.

2. The part citing the judgment of the court of first instance

The court's explanation on the "basic facts of this case" and "decision on the claim for payment of damages for delay by agreement" is as stated in the main text of Article 420 of the Civil Procedure Act, since the following three parts of the judgment of the court of first instance are the same as stated in the main text of Article 420 of the Civil Procedure Act, in addition to the use of the following three parts in the judgment of the court of first instance:

C. Foods

"There is no head or documentary evidence." Even if Article 5(2) of the sales contract of this case is applied not only to the case where the formation work is delayed, but also to the case where the period of land use is delayed due to the reasons attributable to the defendant, it is possible to supply the land at the time of conclusion of the sales contract, but also to the case where the period of land use is delayed due to the reasons attributable to the defendant that occurred thereafter, it is difficult to view that it is also applicable to the case where a separate measure was required to achieve the purpose of the contract because it is impossible to supply the land that can be constructed through the current design, which was presented by the defendant as at the time of conclusion of the sales contract as in this case.

3. Determination on the claim for damages due to nonperformance

A. Whether the liability for damages occurred

【Plaintiff’s Claim】

At the time of sale of the housing site in this case, the Plaintiff revealed that it was impossible for the Defendant to achieve the floor area ratio and the number of households (average average figure) presented by the Defendant to the bidders at the time of the purchase of the housing site in this case. The Plaintiff asserted that the Defendant was liable for damages due to nonperformance, since the Defendant did not promptly correct the problem despite the Plaintiff’s demand to resolve such problem.

【Defendant’s Claim】

The defendant means only the permissible upper limit under the related Acts and subordinate statutes, and it cannot be said that the defendant guaranteed the construction of apartment houses meeting the upper limit of the floor area ratio and the number of households at the same time. The design plan provided at the time of the sale of the housing site at the time of the sale of the housing site at the time of the sale of the housing site at the time of the sale of the housing site at the time of the sale of the building site at the same time is merely the recommended matters except the concept of annual commercial placement, and thus, it is possible to make a design meeting the prescribed floor area ratio and the number of households at the same time. The plaintiff, the purchaser, should be aware of various restrictions on whether the land in this case can be used for the purchase purpose, relevant Acts and subordinate statutes, and the state of the relevant real estate

[Judgment]

1) The purpose of each of the instant sales contracts and the Defendant’s cooperation

In full view of the purport of the entire pleadings, the following facts can be acknowledged in evidence (Evidence A Nos. 1 and 3-1, 2).

(1) The floor area ratio, the number of households and the average number of floors, which are restricted on apartment construction sites, are very important factors in judging the feasibility of apartment sale projects.

② The Plaintiff determined that there was an economic feasibility based on the premise that each of the instant lands was constructed and sold by 160% of the floor area ratio and 749 units of apartment units of average square 45 square meters under the limitation on the 7th floor area ratio according to the district unit plan based on the current status design offered by the Defendant, and purchased each of the instant lands.

According to the above premise facts and the above facts, the Plaintiff appears to have concluded each purchase contract of this case with the aim of constructing and selling apartment buildings with profitability and possibility of sale by making maximum use of 160% of the floor area ratio and 749 households on each of the lands of this case based on the plan of the present situation design offered by the Defendant. In addition, the Defendant concluded each purchase contract of this case as a housing site development project (Article 2 subparag. 4 of the Housing Site Development Promotion Act) for a housing site development project to develop housing sites capable of housing construction and residential life by utilizing a group of land, the purpose of which was to sell each of the lands of this case, which are multi-family housing construction sites in Namyang-ju B Housing Site Development Promotion Zone, and to allow the Plaintiff to sell a large-scale apartment to many people after constructing it on the ground, thereby bringing about the improvement of residential stability and welfare of the residents. To this end, it was necessary to grant the motive for implementing the construction project by having the Plaintiff executing the new construction and sale project of this case to the maximum extent possible.

It is reasonable to see that it is.

2) The plaintiff's business delay due to the defendant's default

In full view of evidence (including evidence Nos. 1 through 6, evidence No. 11, evidence No. 15, evidence No. 20, evidence No. 39 through 45, evidence No. 47 (including all of the separate numbers), and evidence No. 1-2, evidence No. 4-1 through 4, evidence No. 11, 12, and 13, evidence No. 16 through 20, and evidence No. 16 through No. 20 (including all of the separate numbers) submitted by the defendant, the following facts can be acknowledged.

① As of December 30, 2009, the time for land use proposed by the Defendant, the Plaintiff anticipated that the apartment can be sold in lots around that time. The Plaintiff applied for the sale of each of the instant lands, and even after the conclusion of each of the instant sales contracts, the Plaintiff formulated a project plan for the construction of the apartment on the basis of the above date.

(2) If it is intended to sell an apartment around December 30, 2009 and around the time, all of the authorization and permission procedures related to the design and construction of the apartment shall be completed prior to the sale of the apartment.

③ In order to implement the authorization and permission procedures (MP deliberation, construction deliberation, approval of a project plan, reporting on commencement of construction, reporting on sale price, approval for sale price, etc.) related to the design and construction of the above apartment, at least nine-month period is required.

④ However, even if only the concept of a sea-type commercial building among the current design proposals presented by the Defendant on each land of this case is applied, it was practically impossible to build apartment houses with profitability and possibility of sale by making the maximum use of 160% floor area ratio and 749 households under the limit of average floor number 7 floors.

⑤ Accordingly, around December 2008, the Plaintiff pointed out the problems in the current state design and requested the Defendant to relax the restriction on the floor area ratio, average floor area ratio, etc. of each land of this case. However, the Defendant consistently accepted a statement that there was no responsibility for himself/herself, and the Defendant did not take any measures, and it constitutes a case where the Plaintiff intended to create a improved design for the purpose of changing the average floor area ratio, ground parking lot ratio, etc. of each land of this case, which was submitted by the arbitration of the Ministry

④ Accordingly, on January 20, 2010, as the Ministry of Land, Transport and Maritime Affairs publicly notified that the development plan and implementation plan were modified to G, and the average number of floors of each land of this case was modified to eight, according to the district unit plan, and only that time, the Plaintiff could be able to construct apartments with profitability and possibility of sale by making maximum use of 160% of the floor area ratio and 749 households on each land of this case, and accordingly, the authorization and permission procedure related to the design and construction of apartments to be constructed on each land of this case was delayed for about 10 months.

According to the above premise facts and the above facts, unlike the present situation design proposal presented by the defendant, it is impossible to build apartment with profitability and possibility of sale by using the upper limit of the floor area ratio and the household number as much as possible under the limitation of the average floor area ratio of each of the lands of this case. At least around December 2008, the defendant seems to have recognized such circumstances upon the plaintiff's request for mitigation of restriction. Therefore, considering the appropriate period required for authorization and permission procedures for apartment construction, the defendant is responsible for compensating the plaintiff from that time to the date excluding the appropriate period after counting from the land use time to the date excluding the reasonable period after counting from that time, taking into account the reasonable period necessary for the authorization and permission procedures for apartment construction and sale of apartment with profitability and possibility of sale by using the maximum number of 160% of the floor area ratio and 749 households of each of the lands of this case, and due to delay in the performance of such obligations, it is reasonable to deem that the defendant is liable to compensate the plaintiff for damages due to the above delay.

B. Scope of liability for damages

【Plaintiff’s Claim】

The Plaintiff, due to the Defendant’s nonperformance, bears the burden of delay in the construction and sale of apartment buildings using each of the instant land for at least ten months as a result of the Defendant’s delay in the construction and sale of apartment buildings by using each of the instant land (hereinafter referred to as “PF”), 6, 536, 519,00 won, and ② 10-month sales management expenses.

The defendant asserts that he was liable for compensating for damages equivalent to KRW 300,000,00,000, as he suffered damages equivalent to KRW 2,547.96, KRW 300,000 for a model house site.

【Defendant’s Claim】

The defendant asserts that ① in the case of the interest on a PF loan, the plaintiff's claim that the amount equivalent to the interest on the PF loan for ten months at the time of sale cannot be viewed as the damage in proximate causal relation to the plaintiff's business delay due to the defendant's default. Furthermore, the plaintiff's claim that the amount equivalent to the interest on the PF loan for ten months at the time of sale shall not be viewed as the damage in proximate causal relation to the plaintiff's business delay due to the defendant's default. In addition, in the case of the sales management expenses, there is no objective evidentiary document, as well as the expenses incurred in the maintenance and management of the plaintiff, which cannot be viewed as the damage in proximate relation to the defendant's default. ③ In the case of the rent on a lot for a model house, the payment of rent from the land for the construction of a model house shall be based on the plaintiff's own responsibility and judgment, and since the defendant had already known the above lease in the situation of default, it cannot be viewed as the damage caused by the defendant's default.

[Judgment]

1) Interest on the PF loan

Evidence (Evidence A 7, Evidence A 18-4 through 7, Evidence A 25-1 through 4, Evidence A 32, 33, Evidence A 34-1, 23, Evidence A 35, Evidence A 46-1, 46-2) aggregate of the purport of the entire pleadings

In all cases, the following facts may be recognized:

① The construction companies that purchase housing sites from the Defendant, including the Plaintiff, are raising the remainder of the land price through a financial institution’s pF loan, except the first contract deposit to be paid at the time of concluding the contract.

② In order to obtain a PF loan, the Plaintiff submitted various documents, such as a recommendation, issued by the Defendant, to the new bank. On June 27, 2008, the Plaintiff transferred to the new bank a deposit refund claim under each of the instant sales contract, which the Plaintiff had against the Defendant as a security for a loan claim, and sent a written request for notification and approval of the transfer of claims specified in the loan interest rate (three months CD +2.8%) and the loan period (18 months). On the same day, the Plaintiff prepared a written request for the transfer of claims and the written request for the transfer of claims specified in the loan agreement between the new bank and the Plaintiff for the purpose of preserving the claim for the recovery of the loan under the loan agreement agreed upon by the Defendant

13 The Plaintiff paid approximately KRW 35,200,000,000 for each of the lands of this case from a new bank respectively. At that time, only the loan was made at the end of December 2009, which is the remainder date of each of the lands of this case, and the new bank remitted the land price directly to the Defendant’s national bank account pursuant to the loan agreement with the Plaintiff.

(4) However, as seen earlier, the Plaintiff increased the interest rate of the loan by extending the maturity of the previous loan for three months after consultation with the new bank, but thereafter, the Plaintiff delayed its business on March 29, 2010, respectively, with a limit of KRW 100,000,000, KRW 10,000,000 from the new bank and Jeju bank, and then repaid the principal and interest of the PF loan in accordance with the new loan agreement.

⑤ The Plaintiff paid interest on the PF loan to a new bank, etc. in relation to the construction and sale of apartment buildings in each of the instant land as shown in the attached Table. Of them, the sum paid to the PF loan interest from December 31, 2009 to October 30, 2010 is KRW 6,565,04,550 in total.

According to the premise and the above facts, damages equivalent to the interest on the PF loan interest due to the Plaintiff’s nonperformance of obligation are claimed as damages, which are not ordinary damages but damages due to special circumstances. However, the Defendant knew that the Plaintiff would pay the purchase price of each of the instant land through the PF loan and that the Plaintiff would incur additional interest on the PF loan interest according to the interest rate raised during the delayed period of ten (10) months due to the delay in the sale of apartment of this case. In fact, the Plaintiff paid 6,565,04,50 won as the interest on the PF loan during the delayed period of business due to the Defendant’s nonperformance of obligation, and determined a reasonable level as to the PF loan interest rate applied to the lender. Moreover, the Plaintiff’s assertion that the Plaintiff was liable for damages due to the delay in sale within the scope of 60 years due to the delay in sale, and there was no evidence to acknowledge that the Plaintiff could incur damages due to the delay in sale within the scope of 90 days due to the Plaintiff’s delay in sale.

(ii) sales and management expenses;

The evidence (Evidence evidence Nos. 8 and 21) alone is insufficient to recognize that the Plaintiff spent KRW 2,547,908,166 in total with sales management expenses, such as salary, bonus, personnel expenses, retirement allowances, living expenses after welfare, entertainment expenses, taxes and public charges, public charges, entertainment expenses, vehicle maintenance expenses, insurance premiums, communication expenses, water-saving expenses, lease expenses, consumption expenses, office supplies expenses, and payment fees, as alleged by the Plaintiff, from January 1, 2010 to October 30, 2010, when considering that the Plaintiff’s expenses incurred in maintenance and management of the Plaintiff, who had continued to exist as a general construction company, as alleged by the Plaintiff. Moreover, even based on the sales management expenses claimed by the Plaintiff, it is insufficient to recognize that there is insufficient evidence to acknowledge that there is a proximate causal relation between the Plaintiff’s default and the sales management expenses of the instant apartment.

(iii) the site rent for the model house;

According to evidence (Evidence No. 5-1 and Evidence No. 9), a lease contract was concluded between the Plaintiff and the Plaintiff on Sep. 23, 2010 for the purpose of selling a sample house in accordance with the timing of land use, with the intention of selling it in lots on Sep. 23, 2010, setting the lease period of KRW 30 million for one year from Oct. 30, 2009 to Oct. 29, 2010 for a rental period of KRW 661 meters for a model house, which is the site for the construction of the model house, and for a rental period of KRW 330 million for one year, and around December 8, 2009, it can be acknowledged that the Plaintiff notified the Defendant of the fact that the model house site was leased as above.

According to the above premise facts and the above facts, it was impossible for the plaintiff to construct and sell apartment buildings with profitability and possibility of sale by using the upper limit of the floor area ratio and the household number as much as possible in accordance with the current situation design, and it was difficult for the defendant to take part in the apartment sales business of this case because the defendant did not comply with the request. Even in the plaintiff's assertion, even if the district unit plan was modified, it was anticipated that a considerable period of time would take place during the procedure for authorization and permission and the period until the sale in lots would take place. Nevertheless, since the plaintiff leased a model house site from October 30, 2009 where the change of the district unit plan was not finalized, even if the amount of rent was increased due to the delay in the sale in lots of the apartment house of this case, it is difficult to view that the plaintiff bears the burden of expenses incurred by him and its judgment and that there is a proximate causal causal relation due to the defendant's default. The plaintiff's assertion on this part

C. Limitation on liability for damages

In light of the circumstances surrounding the conclusion of each of the instant sales contracts, it is reasonable to limit the Defendant’s liability ratio to 50% of the amount of damages in accordance with the principle of fairness, considering the following: (a) the Plaintiff, at the time of entering into each of the instant sales contracts, fully ascertaining the various restrictions, relevant statutes, and the current status of each of the instant lands; and (b) if he/she designs an apartment in compliance with the relevant statutes and regulations, he/she has a duty of care to verify whether an apartment with profitability and possibility of parcelling-out, can be constructed by fully utilizing the floor area ratio and the number of households under the district unit plan, although he/she had a duty of care to verify whether an apartment with profitability and possibility of parcelling-out could be built by fully utilizing the floor area ratio and the number of households in the instant land; and (c) the fact that the problems in the design plan have been revealed after the occurrence of the problems of each

D. Sub-committee

Therefore, the Defendant is obligated to pay the Plaintiff the amount of damages due to nonperformance of the obligation (i.e., KRW 6,536,519,00 x 50%, and the amount less than KRW 50%, hereinafter the same).

4. Determination on the claim for return of unjust enrichment

A. The remainder of damages for delay due to delay in payment

【Plaintiff’s Claim】

The plaintiff argues to the purport that the time of use of each land of this case was delayed for more than 10 months due to the defendant's mistake, and that the plaintiff may refuse to pay the balance of each purchase and sale contract of this case during the delayed period. Thus, even though there was no obligation to pay damages for delay to the defendant for delay, the defendant paid the amount of KRW 3,781,470,936 as compensation for delay for the balance during the delayed period, and the defendant unjust enrichment without any legal ground and the plaintiff suffered losses equivalent to the same

[Judgment]

According to the above facts, since the date of the final installment payment agreed upon by the Plaintiff and the Defendant was premised on allowing the use of each land of this case until then, the Defendant has a contractual obligation to create a condition that the Plaintiff can start the housing construction project on each land of this case until the time of the fourth installment payment, which is the last installment payment. However, unlike the current design proposal offered by the Defendant, it is impossible to build apartment with profitability and possibility of parcelling-out by using 160% of the floor area ratio and 749 households on each land of this case purchased by the Plaintiff as much as possible, and the Defendant neglected to take necessary measures despite the Plaintiff’s request, and thus, on January 20, 2010, the fourth installment payment date of each of the sales contract of this case was approved and announced by the Ministry of Land, Transport and Maritime Affairs as the alteration of the district unit plan to each of this case’s land of this case, and thus, it is difficult to deem that the construction of apartment was delayed by the Defendant for 16th month and 16th month of each of the land usage period.

However, on February 8, 2011, part of the fourth installment on E land to the Defendant.

15,441,847,130 won due to delayed damages due to the delayed interest rate (12%) per annum;

2,758,152,870 won, and the remaining four installments on February 10, 201 (19,758,552,870 won on land + 16,341,50,000 won on land + the remainder of the four installments on E land + 2,404,052,52,870 won per annum 12% interest rate per annum on delay (2,404,618,460 won on land + 2,460 won per annum 30% interest rate per annum) of the above 30% interest rate per annum for delay (2,401,618,460 won on land + 2,434,060 won per annum) of the above 30% interest rate per annum from December 31, 2009 to 3010, 2014.

B. Part of property tax

【Plaintiff’s Claim】

The Plaintiff asserts to the effect that, on behalf of the Defendant, the Defendant paid KRW 402,635,500 of the property tax for each of the instant lands in 2010, the Defendant unjustly gained profits equivalent to the above amount, and the Plaintiff suffered losses equivalent to the same amount, and thus, the Plaintiff should return it to

[Judgment]

According to evidence (Evidence No. 10-1, No. 10-4), the fact that the Plaintiff paid an amount equivalent to KRW 403,635,500 (=property tax on land C + KRW 186,139,05 + Property tax of KRW 217,496,495 on land) to the Defendant’s account on February 10, 201 can be acknowledged.

According to the above facts and the above facts, the plaintiff and the defendant agreed to pay taxes and public charges after December 22, 2009, which were to pay the final installment at the time of each of the instant sales contracts, to the effect that the plaintiff agreed to pay them even if they were to be imposed under the name of the defendant. This is interpreted to the effect that the plaintiff agreed to pay taxes and public charges on each of the instant lands, regardless of the ownership of each of the instant lands, on December 22, 2009, on the premise that the plaintiff would be able to use each of the instant lands on December 30, 209, on the premise that the final installment payment period between the defendant and the defendant was determined as the final installment payment period, and that the plaintiff did not have an obligation to pay taxes and public charges on each of the instant lands, regardless of the ownership of each of the instant lands. However, as seen above, the plaintiff's default of the defendant's obligation to pay taxes and public charges on each of the instant lands, and thus, the defendant did not have an obligation to pay them in good faith.

C. Sub-committee

Therefore, the Defendant, as a return of unjust enrichment, is obligated to pay to the Plaintiff KRW 3,921,746,710 (i.e., the amount of the fourth installment from December 31, 2009 to October 30, 2010 + KRW 3,518,111,210 + Property tax of KRW 403,635,50).

5. Conclusion

Therefore, the defendant is obligated to pay to the plaintiff 7,190,06,210 won (=3,268,259,500 won + 3,921,746,710 won) and to pay damages for delay at each rate of 20% per annum under the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings from the following day to the date of full payment, as the plaintiff seeks after the due date or the date of unjust enrichment.

Therefore, the plaintiff's claim is reasonable within the scope of the above recognition, and the remainder is without merit. Since the judgment of the court of first instance partially different conclusions are unfair, it is modified based on the plaintiff's appeal as stated in Paragraph 1, and the defendant's appeal is dismissed as it is without merit. It is so decided as per Disposition.

Judges Doing the presiding judge;

Judges Shin Jin-hee

Judge Park Jong-ok

A person shall be appointed.

A person shall be appointed.