(영문) 전주지방법원 군산지원 2018. 3. 30. 선고 2017가합12310 제1민사부 판결

(a) The amount of money indicated in the column for “the amount of discount” in attached Table to Plaintiff (Appointed Party) and Selection C, D, E, F, and G, and the amount of money indicated in the column for “amount of restitution” among them, 5% per annum from August 1, 2017 to November 2, 2017; 15% per annum from the next day to the date of full payment; and 15% per annum from November 3, 2017 to the date of full payment; and 15% per annum for each money indicated in the column for “amount of penalty”;

(b) The amount of money stated in the column of “the amount of discount” in attached Table to H, I, J, K, L, M, N,O, and P as well as the amount of money stated in the column of “the amount of discount” from August 1, 2017 to the Commission, and from November 3, 2017 to March 30, 2018, the amount of money calculated at each rate of 5% per annum from the following day to the date of full payment, and from each rate of 15% per annum from the date of full payment to the date of full payment.

sub-payment.

2. The remaining claims of the plaintiffs (appointed parties) and the designated parties are dismissed, respectively.

3. Of the costs of lawsuit, the part arising between the Plaintiff (Appointed) and the Appointed C, D, E, F, G and the Defendant shall be borne by the Defendant, and 10% of the part arising between the Appointed H, I, J, K, L, M, N,O, P and the Defendant shall be borne by the aforementioned Appointed, and the remainder by the Defendant.

4. Paragraph 1 can be provisionally executed.

Purport of claim

The Defendant shall pay to the Plaintiff (Appointed Party) and the Selections the amount of money in the column of the claim in the attached Table, 5% per annum from August 1, 2017 to the service date of a duplicate of the complaint in this case, and 15% per annum from the next day to the day of complete payment.

Reasons

1. Facts of recognition;

A. The Defendant is a housing association established under the Housing Act and subordinate statutes to implement a construction project of Q apartment in the Gunsan City (hereinafter “instant apartment”), and the Japanese Construction Co., Ltd. (hereinafter “Japan Construction”) entered into a construction contract for the instant apartment construction project with the Defendant, and the housing construction cost Co., Ltd. (hereinafter “Housing Construction Cost”) is the Defendant’s agency business.

B. The Appointor I, J, L, M, N, and P (hereinafter referred to as “designatedor I, etc.”) paid the contributions of the members to the Defendant and the business expenses between 2012 and 2014, and concluded a membership agreement with the members to allocate each Dong and lake as stated in the “object of Sale” in the attached Table among the apartment buildings in this case, but lost its membership status after the conclusion of the membership agreement.

Accordingly, the date of concluding a contract for the sale of buildings in attached Table I, etc. entered into a contract with the defendant for each of the relevant days, which stipulates that the Dong and the number of houses as originally stipulated in the contract for the purchase of buildings in attached Table 1, which is the amount of money equivalent to the contributions of the union members, shall be the amount indicated in the "sale Price" column of attached Table 1, which states that the defendant will purchase buildings in the position of the general

C. On the other hand, the plaintiff (appointed party; hereinafter referred to as the "Plaintiff") entered into a contract with the defendant to purchase each of the corresponding units and units in the "attached Table 3, 3, K, D, E,O, F, and G (hereinafter referred to as the "Plaintiff A, etc.") on the corresponding date specified in the "Attachment 3" column for the notice of the conclusion of the sale contract, and entered into a contract with the defendant to purchase each of the units and units of the apartment units in the "attached Table 3)" column for the "sale price of the apartment unit in this case. The letter of commitment and apartment supply contract stating the above purport (hereinafter referred to as "Plaintiff A and the designated parties," and "each sales contract entered into with the defendant and each apartment unit contract entered into with the defendant" are called the "sale contract in this case", and "the apartment unit supply contract" as "the apartment unit supply contract").

D. As to the rescission, etc. of the instant supply contract, the following are stipulated in the instant supply contract.

The defendant's "A" and "B" (hereinafter the same shall apply to other contracts). Article 5 (Cancellation of Contracts)(2) may terminate this contract if it is not possible to move into within three months from the scheduled date of move into due to the reasons attributable to A's fault.* The scheduled date of move into: April 2017 (The date determined to move into shall later be notified) if this contract is terminated for reasons falling under Article 6 (Penalty)(2) of the 2017 (Penalty)(2) of the 2017(Penalty)(2), A shall pay to B the total amount of the parcelling-out price as penalty.(3) If this contract is terminated due to the reasons referred to in Article 5, A shall deduct the principal and interest interest of the loan under Article 1 (3) from the pre-paid sale price.

E. Also, during the period from June 25, 2016 to July 2, 2016, the Appointor A, H, C, J, K, L, D, E, 0, G, and P concluded a balcony expansion construction contract containing the following: (a) the Defendant, the daily construction and supply amount of KRW 11,00,000 (including surtax):

O Byung (O) will perform the balcony expansion construction work at the same time as apartment construction, and Eul will pay the supply price to the designated account (B Housing Association) (B).In the event that C does not pay the total supply price, A may refuse to move into B even if the payment of the remainder is made.In the event that the contract of O apartment is rescinded on the grounds of B's fault, A may cancel the balcony expansion contract without a separate peremptory notice.If the rights and obligations of B under the O apartment contract are succeeded to a third party, all rights and obligations under this contract will be automatically succeeded to the same person.

F. Under the plaintiffs' temperature, as shown in [Attachment 1], the Defendant was provided with sale price and balcony probability equipment, and the designated parties I paid agency expenses to the Defendant or agency housing construction for the period during which they were in a membership position. The sale price that the Plaintiffs paid to the Defendant and the final payment date of balcony confirmation equipment are as listed below [Attachment 2].

[Attachment 1]

(unit: source)

Serial 1070,750,750,70670,60760,60760,60760,750,750,7500,7500,750,7500,7500, 76060,76060,77060,7060,6060,65067,7060,650,000,70660,750,760,707,000,000,000, 650, 650, 650, 135,000,90,90,0000, 7560,760,760,760,750,000,0000, 680,608,6067,0060,006

[Attachment 2]

(1) On January 30, 2017, the date of the last payment of the purchase price of a balcony No. 1 A on August 30, 2016: H on August 30, 2017; and (2) on September 30, 2016, J on September 30, 2017, J on November 30, 2017, the date of the last payment of the purchase price of a balcony No. 13565, Nov. 36, 2017; and (3) on January 30, 2017; and (4) on January 30, 2016, the date of the last payment of the purchase price of a balcony No. 1583, Aug. 16, 2017; and (4) on August 30, 2016, G. 2018;

G. On the other hand, H, I, K, and M entered into a contract for the management system in the team of the Co., Ltd. and the aforementioned designated parties to install the system in the household, and paid the installation cost to the above company as indicated below in the column of “pre-paid construction cost.”

H 1 The cost of performing the term payment for the contract on the date of concluding the contract on June 29, 2016, H 1 H 3,870,000 3,483,000 on July 2, 2016, 2016: 3,870,000 3,870,000,000 3,870,000 on June 27, 2016; 3,870,000 3,483,00 on June 27, 2016; 4,870,000 M M 4 M 3,870,000 3,483,000 on October 24, 2016;

H. In addition, the designated parties K andO entered into an environment-friendly construction contract with each other, "traditional Natural Space (hereinafter referred to as "YY") which installs traditional natural space in the household that was sold to the above designated parties, and paid the installation cost as indicated below in the column of "the cost of construction for the term".

K 1 K 2,690,000 2,690,690,000 on February 16, 2017: 20 on September 22, 2016: 200 on September 22, 2016; 2,690,000,500,000

I. The Plaintiffs were unable to move into the instant apartment after three months from April 2017, which was the scheduled date of move-in, and notified the Defendant on October 24, 2017 that the instant sales contract was cancelled.

j. The instant apartment building began to move in from the beginning of November 2017 due to the delay in construction completion and approval for use.

【Ground of recognition】 The fact that there is no dispute over the dispute, Gap 1 through 6, 12 through 14, 20 through 36 (including branch numbers if there are branch numbers; hereinafter the same shall apply) and the purport of the whole pleadings

2. The parties' assertion

A. The plaintiffs

1. The plaintiffs were unable to move into the apartment of this case within three months from the scheduled date of move into the apartment of this case due to the reasons attributable to the defendant, and thus, the sales contract of this case was lawfully rescinded pursuant to Article 5 (2) of the supply contract of this case. The contract of this case was also cancelled, and the contract of balcony expansion was also cancelled in addition thereto. Thus, the defendant is obligated to return the sales price (including agency expenses paid by the selected person I et al. to the defendant or the housing construction) and balcony confirmation equipment, and pay a penalty equivalent to ten percent of the sales price.

2. The Appointers H, I, K, and M shall perform installation works on the system to the household unit in accordance with the Defendant’s proposal, and the Appointers K andO performed installation works on the yellow soil bank. The contract for sale in this case was cancelled due to the Defendant’s cause attributable to the Defendant, thereby making it impossible to use the system and the yellow soil bank corresponding to the above apartment. Therefore, the Defendant is obliged to pay the amount equivalent to the cost of installation of the system and the cost of installation of the yellow soil bank to the designated parties upon compensation for damages or return of unjust enrichment.

B. Defendant

The plaintiffs agreed not to impede the progress of the sales contract in this case because they were sold in lots at a price equivalent to the members' contributions and were in a position similar to the members of the association in substance, such as attending the general meeting of the association members. As such, in light of the characteristics of the regional housing association project, they could have been expected to delay the occupancy compared to the scheduled date of occupancy specified in the supply contract, and the supply contract in this case was formally prepared by the plaintiffs to take part in the part payment loan. Thus, the scheduled date of occupancy is merely formally stated, and the plaintiffs can claim compensation for delay due to delay of occupancy, the plaintiffs can claim compensation for delay due to delay of occupancy, and currently the plaintiffs can take part in the remaining amount at any time, taking into account the fact that the main purpose of the sales contract in this case is to purchase the apartment in this case at a price lower than the general sale price, and the obligation to observe the timing of occupancy is nothing more than incidental obligations. Therefore, even if the defendant failed to observe the scheduled date of occupancy for three months or more, it is not allowed to cancel the sales contract in this case

3. Cancellation of the sales contract and the contract for the construction work of balcony expansion;

A. Determination on the cause of the claim

According to Article 5(2) of the instant supply contract, where the Plaintiffs are unable to move into within three months from the scheduled date of occupancy due to the Defendant’s cause attributable to the Plaintiff, the instant sales contract can be rescinded. The Plaintiffs became unable to move into until July 31, 2017 after three months from the scheduled date of occupancy under the instant sales contract, which is the scheduled date of occupancy under the instant sales contract. The Plaintiffs notified the Defendant of the cancellation of the instant sales contract on October 24, 2017. As seen earlier, the instant sales contract was legally rescinded on October 24, 2017.

In addition, there is no dispute between the parties as to the fact that the balcony expansion contract of this case was concluded in addition to the sales contract of this case. As such, since the sales contract of this case was lawfully rescinded, the contract of balcony expansion construction, which is a contract incidental thereto, was lawfully rescinded on the same day (see Supreme Court Decision 2006Da67602, 67619, July 9, 2009).

B. Judgment on the defendant's assertion

The defendant's assertion and detention, the obligation to observe the occupancy time is limited to incidental obligations, and even if the occupancy is somewhat late, if there is no obstacle to achieving the purpose of the sale contract in this case, it is reasonable to recognize only liability for delay compensation, etc. rather than allowing the cancellation of the contract.

However, in full view of the following circumstances, the regional housing association project can normally be delayed due to various circumstances, and even if considering the circumstances that the plaintiffs can seek compensation for delay instead of choosing termination of contract, the obligation to allow occupancy within three months from the scheduled date of occupancy cannot be deemed as an incidental obligation irrelevant to the achievement of the purpose of the contract. Thus, the prior argument by the defendant is without merit.

1) First, as to whether the plaintiffs are practically obligated to take measures for the delay of occupancy in the position of substantially quasi-member, the plaintiffs were able to benefit from the purchase of the apartment of this case at a reasonable price to the members' contributions. However, such circumstance alone is not sufficient to deem that the plaintiffs are practically members of the association. Furthermore, there is no evidence to support that the plaintiffs could have enjoyed substantial rights as members of the association, such as that the plaintiffs could have been able to participate in the partnership affairs by guaranteeing the opportunity to state opinions at the general meeting of members, or that the plaintiffs could have sufficiently explained about the progress of the business, and that the reasons for delay of occupancy. Thus, the plaintiffs cannot be deemed as

2) Next, as to whether the supply contract of this case was formally prepared, the following circumstances are stated as follows: ① Selected person I, C, J, L, M, N, andO prepared each document (written confirmation) prepared by the Selected person I, C, M, N, andO (hereinafter omitted) shall conclude a general supply contract and enter into a general supply contract (hereinafter omitted). The above Selected person and the defendant agreed to conclude a general supply contract at a price equivalent to the same number of houses, units, and members' contributions as the union members' subscription agreement, and prepared a separate supply contract of this case. Accordingly, it appears that the contract of this case was prepared as a member of this case, and the plaintiff 2, Eul et al. concluded the apartment sale contract of this case from the original status of the apartment purchaser, but did not lose its status, and the terms and conditions of the contract of this case should be included in the standard sale contract of apartment sale contract of this case including the agreement of sale contract of this case and the terms and conditions of the contract of sale contract of this case.

3) In the case of multiple apartment buyers, it is general to set a relatively conclusive scheduled time for occupancy at the time of the sale contract because it disposes of the existing apartment house or prepares for directors after completing a lease contract, and the school transfer problems of their children are determined (However, the scheduled date of occupancy is determined not by reflecting the characteristics of the apartment building that is difficult to accurately designate the date of occupancy and the contract for the sale of the apartment unit, and the three-month grace period is set out). The instant supply contract also provides for the grounds for cancellation of the contract in cases where the scheduled date of occupancy is specified and the scheduled date of occupancy is not three months after the scheduled date of occupancy.

4) The Plaintiffs were able to move into the instant apartment after about six months from the initial scheduled date of occupancy. This may not be deemed minor nonperformance due to the minor lapse of the period, and it constitutes a case where the Plaintiffs significantly delayed beyond the originally anticipated scope.

5) While delayed occupancy for more than six months, the Plaintiffs had no choice but to move into a new residence due to school problems of their children, the expiration of the term of the existing housing lease agreement, etc., and received additional loans with a considerable interest burden, or used the money remaining after the remainder of the instant apartment in the lease deposit, etc. of the floating house, thereby making payment of the remainder and allowing them to move into the instant apartment to move into the instant apartment.

4. Obligations to reinstate and pay penalty;

(a) Payment in installments and expenses incurred in expanding balconys;

1) The occurrence of the obligation to return

A) As seen earlier, the instant sales contract and the instant contract for the extension of balcony was cancelled on October 24, 2017, and as such, the Defendant is obligated to pay the Plaintiffs the sales price for each term indicated in the “sale price for the term” column of attached Table to restore to its original state, and the payment for delay for each term payment extension of balcony as indicated in the “sale price for the term” column of the “sale cost for the term payment” column of the “payment for the term payment for

B) Selected I et al. asserted that the sales price under the instant sales contract was determined by adding the cooperative members’ contributions to the amount of the sales contract, and that the Defendant agreed to reduce the amount of the agency expenses in the intermediate payment to the intermediate payment, and thus, the amount of KRW 9,900,000 paid by the said designated parties to the housing construction or the Defendant should be included in the amount of the sales price paid to the Defendant as the amount to be

Restoration due to the cancellation of a contract is a restoration due to the cancellation of a contract, because if the contract is terminated, the performance already performed is retroactively invalidated and has not been received without legal grounds, it refers to the return of the performance received by either party from the other party.

The fact that the sale price in the sale contract of this case has been determined by adding the members' contributions to the total amount of agency expenses is as mentioned above, and the fact that the defendant agreed to reduce the amount of agency expenses in the part payment to be paid by the designated parties I, etc. is not a dispute between the parties.

However, in light of the following circumstances, which can be recognized by comprehensively considering the purport of the entire pleadings as a whole in the statement No. 1 above, i.e., ① an agent fee is clearly divided into the amount paid by the association members to use it in carrying out the instant apartment construction project, and the agency fee is required to be paid to the Defendant’s account as an agent. Thus, even if some of the designated parties have remitted the agency fee to the Defendant’s name, it appears to be the amount which is ultimately attributable to the housing construction, ② even if the association members lose their membership status under the membership agreement, it is not possible to refund the agency fee, and ② the association members lose their membership status under the membership agreement, the above reduction agreement is merely the meaning of exempting the Plaintiffs from the above scope of the obligation to pay the part payment obligation, and it cannot be deemed that the amount equivalent to the agency fee was paid to the Defendant as the sale price, and there is no evidence to deem otherwise that the Defendant paid the amount equivalent to the agency fee to

Therefore, this part of the claim by the Appointor I is without merit.

(b) Obligation to pay penalty;

If the contract for sale in lots is cancelled because it is impossible for the plaintiffs to move into within three months from the scheduled date of occupancy due to the reasons attributable to the defendant, the defendant agrees to pay the plaintiffs the amount equivalent to 10% of the total price of the sale in lots as penalty, and the fact that the contract for sale in this case was cancelled for the above reasons is recognized as above. Therefore, the defendant is liable to pay to the plaintiff each penalty and damages for delay as stated in the attached Table 10%

C. Sub-committee

Therefore, with respect to each of the money listed in the column for “personal use” in attached Table to Plaintiffs A and Selection C, D, E, F, and G and each of the money listed in the “refinite X-how” column among them (the sum of the money indicated in the “pre-sale price” and “cost for the expansion of balcony payment” as of August 1, 2017 to November 2, 2017, as sought by the Plaintiff and the aforementioned designated parties, the Defendant calculated at the rate of 5% per annum under the Civil Act from August 1, 2017 to November 2, 2017, and 15% per annum under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings from the next day to the day of full payment, and with respect to each money described in the column for “refinite charge” from November 3, 2017 to the day of full payment, etc. of the copy of the complaint of this case.

The amount of damages for delay calculated at the rate of 15% per annum as prescribed by the Act on Special Cases Concerning the Settlement of Residents and the amount of damages for delay as stated in the column of "amount cited in the attached Table to the Selection, I, J, K, L, M, N,O, and P" and the amount in the column of "amount cited in the attached Table" among them are liable to pay each amount of damages for delay calculated at the rate of 15% per annum from August 1, 2017 to November 3, 2017, the day following the delivery date of the copy of the complaint of this case, which is the date of the decision of this case until March 30, 2018, which is 5% per annum as stipulated in the Civil Act, and the amount of damages for delay calculated at the rate of 15% per annum from the next day to the date of the decision of this case (the plaintiff has no evidence to acknowledge the fact that the plaintiff has received the damages for delay from the defendant before the delivery date of the complaint of this case).

5. Determination as to a claim for damages equivalent to the cost of construction in the system and yellow soil bank construction or a claim for restitution of unjust enrichment

A. As to the claim for damages

The purpose of Article 398 of the Civil Act is to relieve the occurrence of damages and the difficulty in proving the amount of damages, prevent the occurrence of disputes in advance, and facilitate the settlement of legal relations. In cases where the amount of damages was determined at the time of a contract, barring any special agreement, as well as ordinary damages incurred due to nonperformance, and special damages, and even if the amount of damages exceeds the estimated amount of damages, the excess portion may not be separately claimed (see, e.g., Supreme Court Decision 2012Da60954, Dec. 27, 2012).

As seen earlier, the agreement of penalty for breach of contract was concluded in the instant sales contract, and there is no assertion or proof by the Claimant H, I, K, M, andO on the fact that there are special circumstances that the said agreement should be interpreted as a penalty for breach of contract. Therefore, the agreement of penalty for breach of contract is presumed to be a damage compensation agreement.

Therefore, even if the aforementioned designated parties suffered damages equivalent to the above construction cost due to the Defendant’s nonperformance, it cannot be claimed for damages to the Defendant separate from the above penalty. Thus, this part of the claim by the designated parties on a different premise is without merit without examining further claims.

B. As to the claim for restitution of unjust enrichment

A person who has lost ownership due to the conformity may file a claim for compensation in accordance with the provisions on unjust enrichment (Article 261 of the Civil Act), but the designated parties who have asserted the requirements for the establishment and scope of unjust enrichment must prove it.

However, the Defendant cannot be deemed to have gained profits from the construction cost per se paid by each construction company in the system H, I, K, and M to each construction company in the system, and there is no other evidence to recognize the existence or absence of the profit gained by the Defendant due to the establishment and conformity of each air conditioner or yellow soil with each of the above households. Accordingly, this part of the claim by the said designated parties is without merit.

6. Conclusion

Therefore, each of the claims of the plaintiffs in this case is justified within the above scope of recognition, and the remaining claims are dismissed as they are without merit. It is so decided as per Disposition.

Judges

judges of the presiding judge;

Judges Gangwon-do;

Judges Dok-chul

Note tin

1) It is the aggregate of the contributions of members and agency expenses stipulated in a membership agreement.

2) Whether each of the plaintiffs is named as a letter of commitment and a letter (written confirmation) or not, and its content is not more than the same.

3) The method of calculating the sale price by the observer I, etc. is the same.

4) At the time of concluding the contract for the expansion of balcony, the Defendant’s president is the head of the association.

5) It is reasonable to view that the time limit was entered only in year and month, and that it was ordinarily made on the last day of that month if there is no indication of the date.