2019Na15067 Registration of transfer of ownership

A Stock Company

Attorney Park Jong-young, Counsel for the plaintiff-appellant

B Stock Company

Daejeon District Court Decision 2018Gahap865 Decided September 6, 2019

March 26, 2020

2020, 10.8

1. The plaintiff's appeal is dismissed.

2. The appeal cost shall be borne by the Plaintiff.

The judgment of the court of first instance is revoked. In the first instance, the defendant will execute the registration procedure for ownership transfer on each real estate listed in the separate sheet of the court of first instance (hereinafter referred to as "each real estate of this case") with respect to the plaintiff. Preliminaryly, the defendant will pay to the plaintiff 750,000,000 won and 20% per annum from September 29, 2005 to the date of full payment.

1. Quotation of the first instance judgment

The reasoning of this Court is as follows, except where the plaintiff added a judgment on the assertion that was either written below or emphasized by this Court, and thus, I accept it pursuant to the main sentence of Article 420 of the Civil Procedure Act.

■ 제1심판결문 제3면 제1행의 "E아파트 건설사업"을 "J아파트 건설사업(이하 '이 사건 사업'이라고 합니다)"으로 고쳐 씁니다.

■ 제1심판결문 제3면 제6, 7행의 "승계약정(이하 '제2 승계약정'이라 한다)"을 "승계약정(이하 '제2 승계약정이라 하고, 제1, 2 승계약정을 통틀어 '이 사건 승계약정'이라 합니다)"으로 고쳐 씁니다.

A chip "Plaintiff" in paragraph 9 of the table 3 of the judgment of the court of first instance shall be "Defendant".

In the third letter of the judgment of the court of first instance, the phrase "any substantial fact to this court" in the first letter is deleted.

2. The addition of judgment;

A. Summary of the plaintiff's assertion

The Defendant agreed to succeed to C’s obligations while entering into the instant succession agreement and the written rejection of the execution of the agreement with C, and the list of obligations (No. 19 and No. 33-4) of C includes the Plaintiff’s claim against C. Therefore, the Defendant is obligated to implement the registration procedure for ownership transfer of each of the instant real estate on the ground of the instant succession agreement, or to pay the Plaintiff the ancillary construction price of KRW 750,000,000 and the delay damages.

B. Determination

1) The fact that the Plaintiff entered into the instant subcontract with C on February 24, 2000, and C entered into the instant contract with C on November 24, 2000 for the payment of the construction cost under the instant subcontract, and the second succession agreement entered into with the Defendant and F on November 24, 200 that "the Defendant and F succeed to C's obligations and obligations."

2) However, in full view of the following circumstances acknowledged by comprehensively taking account of the aforementioned evidence, Gap evidence 33-4's evidence, the results of the commission to deliver documents to the Daejeon District Prosecutors' Office, and the overall purport of pleadings, it is difficult to believe that the defendant's entry of Gap evidence 19, Gap evidence 3-4 as the list of obligations succeeded from Eul, and other evidence submitted by the plaintiff alone contains the content that the defendant will assume the defendant's obligation to the plaintiff in the instant succession agreement. It is insufficient to view that there is no other evidence to acknowledge otherwise.

A) Nos. 19 and 33-4 of the evidence Nos. 19 and 33 are submitted as a copy because no original exists, and such copy alone cannot be deemed to exist. The originals of each of the above copies are presumed to have been made about 19 years prior to the creation, and the defendant's representative director stated that this court stated that each of the above copies is the first document to be considered in the lawsuit of this case.

B) The Plaintiff’s letter of performance of consultation between C and the Defendant (No. 5 and No. 33)

3) The separate sheet asserts that "The creditor's name and the amount of the construction cost (Evidence A 19) through "C (State)" (Evidence A 33-4, hereinafter referred to as "the debt status document"). However, each of the above documents is written differently as "80,00,000,500,000," respectively, and C's total amount of debt is different from each other as "3,64,000,000,000,000," and it is different from the name of some creditors and whether some of the bonds are included as "the deposit money."

C) The Defendant’s former representative L, who prepared a letter of performance consultation, appears as a witness in a criminal case against C’s representative (Seoul District Court Decision 2014Da3689), stated that the documents on the current status of obligations (Evidence 33-4 of the evidence No. 33), did not have been prepared at the time of the preparation of the letter of performance of consultation, and stated that there was any obligation not succeeded among the obligations indicated in the current status documents (Evidence 28 of the evidence). Furthermore, according to the second succession agreement, the Defendant and F agreed to reimburse the obligation after accurately performing the obligation by mutual agreement with C. The Defendant and F did not appear to have made an actual inspection of the obligation of C, or determined to succeed to the Plaintiff’s obligation after confirming the Plaintiff’s obligation through the actual inspection. According to the current status of the obligation, according to the documents, the amount of obligation of C’s debt exceeds KRW 3.6 billion, and there is no seal or signature of C or the Defendant, etc. in the current status of the performance of the obligation.

D) Meanwhile, in relation to the primary claim, even if the document on the current status of the obligation is considered as a separate document for the execution of the agreement, the agreement 1) written as follows: “C succeeds to the site and the right of business to the Defendant on the terms of delegation of all recorded C’s obligations on January 1, 200; and the document on the present status of the obligation in the above separate document is merely written as the Plaintiff’s claim amounting to KRW 750 million; the content of the agreement on the payment in this case is not written; ② the Plaintiff asserts that the above agreement was made only by agreement with the Plaintiff, the representative director of the Plaintiff, and the Defendant, and the Defendant succeeded to the payment in this case. However, the above agreement was not written, and there is no other evidence to acknowledge it differently; ③ The agreement on the payment in this case was concluded separately from the construction contract between C and the Plaintiff. Therefore, it is difficult to deem that the Defendant succeeded to the payment in this case solely on the basis of the above agreement or the document on the present status of obligation.

C. Sub-committee

If so, we do not need to further examine the defendant's other arguments (non-existence of the construction cost obligation, claim for extinctive prescription, and claim for rescission of the succession agreement in this case).

3. Conclusion

Therefore, the plaintiff's claim shall be dismissed in its entirety as it is without merit. Since the judgment of the court of first instance is just in its conclusion, the plaintiff's appeal is dismissed. It is so decided as per Disposition.

The presiding judge, Park Jong-young

Judge Lee Jae-soo

Judges Kim Gin-sik