2017dada 107367 Undue profit

1. A;

2.B

3.C

D Housing Association

February 23, 2018

March 23, 2018

1. The Defendant shall pay to the Plaintiff A 22,00,000, 16,000,000 won to the Plaintiff B, and 16,00,000 won to the Plaintiff C, and 15% interest per annum from February 6, 2017 to the date of full payment.

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

3. Paragraph 1 can be provisionally executed.

The same shall apply to the order.

1. Basic facts

A. The Defendant is a regional housing association established to build a main apartment on the ground of the Seogu-gu and 134 parcels, and the Plaintiffs are the parties who joined the Defendant Cooperative as its members for the purpose of being supplied with the main apartment constructed by the Defendant Cooperative (hereinafter “instant main apartment”).

B. The D Housing Association Promotion Committee, which promoted the establishment of the Defendant Association (hereinafter “Promotion Committee”), agreed to supply a specific room of the instant main apartment complex to the subscribers to the Defendant Association, and received the association members’ contributions. The association members’ contributions were paid in the form of down payment, intermediate payment (seven installments), and remainder (payment at the time of occupancy).

In addition, the down payment was paid in 16 million won as the first down payment (the down payment shall be 10 million won in contract amount, 6 million won in business promotion expenses) and the second down payment of 26 million won (the down payment shall be 20 million won in contract amount, and 6 million won in business promotion expenses).

C. On June 15, 2016, Plaintiff A entered into an agreement to enter into the Defendant Association with the content of the purchase of at least 105 Dong 3003, the main apartment complex of this case, and paid 22 million won in total, including the first down payment of KRW 16 million (including business promotion expenses) and the second down payment of KRW 6 million among the second down payment. Plaintiff B entered into an agreement to enter into the Defendant Association with the content of the purchase of at least 105 Dong 2003, June 13, 2016, and paid down payment of KRW 16 million (the first down payment including business promotion expenses) on July 3, 2016, Plaintiff C entered into the agreement to enter into the Defendant Association with the content of the purchase of at least 105 Dong 2302, and paid the down payment of KRW 16 million including the down payment (the down payment of the Plaintiff).

C. On December 28, 2016, the instant promotion committee held an inaugural general meeting to establish the Defendant Association:00, and applied for authorization to establish the regional housing association in 2017.

[Reasons for Recognition] Unsatisfy and each entry of Gap evidence 1 (including provisional number)

2.The Director

A. The plaintiffs' assertion

1) Claim for cancellation of a contract

The Defendant Union entered into the instant subscription agreement with the Plaintiffs for the purpose of selling 105 units of the main apartment of this case, but the Plaintiffs in the design cannot purchase each unit designated at the time of the instant subscription agreement, which became impossible to execute.

The defendant union or the defendant union agreed to fully refund the contract deposit, etc. to the plaintiffs within 2016 when it fails to complete the application for the recruitment of association members, establishment of association, or establishment authorization, but did not comply therewith.

Therefore, the plaintiffs cancel the contract of this case by serving the complaint of this case on the grounds of the defendant's default of obligation.

3) Claim on violation of the Act on the Regulation of Terms and Conditions

The provisions pertaining to the insurance contract of this case asserted below are not effective as a violation of the Act on the Regulation of Terms and Conditions.

B. Defendant’s assertion

1) The grounds for revoking the Plaintiffs’ assertion do not constitute grounds for termination under Article 10(8) of the Agreement on Subscription, and the Plaintiffs cannot unilaterally terminate the instant agreement.

2) Claim on the refund of business promotion expenses

According to Article 6(3) of the Agreement, business promotion expenses are not refunded in any case.

3) Forfeiture clause

Article 7 (6) 4 of the subscription contract of this case takes effect only in cases where the full payment of down payment is made, and where the first and second down payment and intermediate payment are not performed within the fixed date, this contract is automatically cancelled and simultaneously the already paid down payment is subject to the defendant association, and the already paid work promotion expenses are attributed to the service company as penalty.

(d) Return of down payment due to deprivation of membership; and

According to Article 2 (Qualification of Union Members), "the qualification of Union members shall be limited to a person who has resided in Daegu-si and Gyeongbuk-do for more than six months from the date of application for authorization to establish an association and who does not have to meet the standard for the application for authorization to establish an association (including a bond holder with a house less than 85 square meters in exclusive use area)". The plaintiff B does not fall under the above provisions, and there is a ground for non-existence of union members.

In addition, according to Article 10 of the subscription contract of this case, the person who becomes disqualified as a member of the association is entitled to refund only the balance after deducting the down payment and business promotion expenses from the principal of the contributions and business promotion expenses (excluding business promotion expenses and overdue interests) paid to him/her.

3.Flag

A. Judgment on the plaintiffs' assertion

1) Determination on the claims filed by Plaintiffs A and C

When concluding the instant subscription agreement with the Plaintiffs, the Defendant Union individually within the pertinent year

Where an application for recruitment, establishment of an association, or establishment of an association is completed and the above matters are not implemented, it shall not be contested the fact that a safe security letter is prepared to refund the entire amount, such as fraternity dues, etc.

In addition, it is clear that such an individual arrangement is included in the content of the instant subscription agreement.

In addition, according to the evidence No. 4 and evidence No. 8, 9 (including paper numbers), it is clear that the Plaintiffs’ column in the relevant year refers to the term of 2016 years for which the Plaintiffs entered into the instant subscription agreement, and the Defendants did not file an application for authorization to establish an association within 2016.

Therefore, the subscription contract of this case was cancelled in accordance with the expression of intent to cancel the subscription contract of this case due to the nonperformance of such obligation of the defendant association, and the defendant is obligated to return the down payment to the above plaintiffs as a performance of duty to restore.

2) Determination as to Plaintiff B’s claim

As of the date of application for authorization for establishment of the defendant association, the plaintiff B recognizes that it does not meet the qualification of union members as provided in Article 2 of the subscription agreement.

Therefore, according to Article 10 of the subscription contract of this case, the plaintiff B's subscription contract of this case lost its effect.

However, if the subscription contract of this case loses its effect, the defendant shall be liable to restore it, so the defendant shall be liable to return the down payment paid by the plaintiff B, unless there are special circumstances.

3) Sub-decisions

Therefore, the defendant shall pay to the plaintiff A KRW 22,00,000, KRW 16,000,000 to the plaintiff B, and KRW 16,00,000 to the plaintiff C, and each of them shall be repaid from February 6, 2017, which is the day following the delivery date of the original copy of the payment order.

There is a duty to pay 15% interest per annum.

B. Defendant’s assertion and judgment on violation of the Act on the Regulation of Terms and Conditions

1) Determination as to whether the instant subscription agreement constitutes a standardized contract

According to the written evidence No. 1 (including paper numbers) and the purport of the entire pleadings, the instant promotion committee, a telegraph of the defendant association, concluded the instant subscription contract with several subscribers in accordance with the fixed form of contract prepared in advance.

In addition, the plaintiffs can find out the fact that only signed and sealed at the end of the contract prepared by the defendant.

Therefore, the contract of this case constitutes a standardized contract under Article 2 of the Act on the Regulation of Terms and Conditions.

2) Whether it constitutes a standardized contract clause that has lost fairness in violation of the principle of good faith

The provision that the defendant's assertion can not terminate the subscription contract of this case except in special cases; that business promotion expenses shall not be refunded in any case; that the contract takes effect only when the full amount of the contract is paid in full; that if the contract is not paid in full, the contract is automatically cancelled; and at the same time, the contract deposit that is paid in the defendant's association belongs to the service company as a penalty for business promotion expenses paid in the defendant's association, which is unilaterally favorable to the defendant's association and excessively harshly unfavorable to the parties to the defendant's association; and that the contract clause is judged to lose fairness in violation of the principle of trust and good faith.

In addition, according to the provision that "if a member becomes disqualified, only the remaining money remains after deducting down payment and business promotion expenses from the principal of the contributions and business promotion expenses paid," the establishment system of the local housing association is one of the systems for supplying multi-family housing to homeless persons.

There are many cases where the general public are not aware of the qualification requirements of the association, and the committee for the promotion of the establishment of a housing association has not detailed and detailed explanation of the qualification requirements of the association when concluding a contract for joining the association, in order to secure a large number of association members within the early time.

In addition, there are many cases such as the provision of Article 10 of the subscription contract of this case, even if a member is disqualified.

Therefore, in light of these circumstances, Article 6 (2) 2 of the Regulation of Terms and Conditions Act which provides that the whole down payment shall not be refunded to the disqualified members of the association by lump sum without classifying them, was excessively unfavorable to the contracting parties, and thus, it is judged that the fairness was lost because it constitutes an unreasonably unfavorable provision to the customers.

Therefore, all of the defendant's arguments cannot be accepted.

4. Conclusion

Therefore, the plaintiffs' claims shall be accepted with due reason, and it is so decided as per Disposition.

Judges Shin Jae-il