(영문) 서울중앙지방법원 2017. 4. 6. 선고 2016가단5014310 판결

1. Defendant B shall pay to the Plaintiff 180,000,000 won with 5% interest per annum from June 5, 2009 to June 27, 2016, and 15% interest per annum from the next day to the day of complete payment.

2. The plaintiff's claim against the defendant C is dismissed.

3. Of the costs of lawsuit, the part arising between the Plaintiff and the Defendant B is borne by the Plaintiff, and the part arising between the Plaintiff and the Defendant C is borne by the Plaintiff

4. Paragraph 1 can be provisionally executed.

Purport of claim

The defendants shall pay to each plaintiff 180,000,000 won with 5% interest per annum from June 5, 2009 to the service date of a copy of the complaint of this case, and 15% interest per annum from the next day to the day of complete payment.

Reasons

1. Determination as to the claim against the defendant B

(a) Description of the claim;

The reasons for the attached Form shall be as shown in the attached Form.

(b) Applicable provisions;

Article 208(3)2 of the Civil Procedure Act)

2. Determination as to the claim against Defendant C

A. The plaintiff's assertion

Defendant C said that the Plaintiff can join the association without any premium, solicited the Plaintiff to join the association members of D&D (hereinafter referred to as the “instant association”), and went directly to Defendant B, and participated in Defendant B’s illegal acts, such as having been at the site at the time when the Plaintiff paid 180 million won to Defendant B.

The letter has been recovered again.

Therefore, the defendant C conspired with the defendant B to commit a tort or assist the defendant C to commit a tort at least.

B. Determination

In addition to all the statements in Gap evidence Nos. 1 through 8, which are the evidence submitted by the plaintiff, it is difficult to view that the defendant C conspired with the defendant Eul to commit a tort or to aid and abetting the defendant B's illegal act, and there is no other evidence to acknowledge it otherwise.

Rather, according to the statement No. 6, Defendant C is only aware of the fact that Defendant C was suspected of committing fraud as above by the inspection agency in the Ulsan Northern Site on December 27, 2016.

Therefore, the plaintiff's argument against the defendant C is without merit.

3. Conclusion

Therefore, the plaintiff's claim against the defendant B is justified, and the claim against the defendant C is dismissed as it is without merit. It is so decided as per Disposition.

Judges

For judges' erroneous use

Site of separate sheet

Grounds of Claim

1. The relationship between parties;

The plaintiff is entitled to join the non-party D Association (hereinafter referred to as the "Association of this case") as a member, and is subject to the defendant's deception, and is subject to the defendant's deception, and is subject to the defendant's deception 180 million won by fraud.

Defendant B, the representative of the instant association, and Defendant C was a director of the instant association. The Defendants, in collusion, deceiving the Plaintiff that the Plaintiff can join the said association if he did not have the intent or ability to subscribe the Plaintiff as a member of the instant association without any premium, thereby deceiving the Plaintiff that he can join the association if he did not have the intent or ability to subscribe the said association. The Defendants are the tort offenders who received from the Plaintiff an amount of KRW 180,000 from the Plaintiff as a contribution and obtained the amount of said amount by deceit.

2. Circumstances of this case

A. Establishment of the instant association and high-value of investment

On June 30, 2008, the association of this case is a non-corporate association established for the project of a regional housing association under the Housing Act (However, at the risk of the accurate authorization date), and was elected as the first representative (the head of the association) by the defendant B (the certificate No. 1 of the evidence No. 1 of this case's articles of association and the certificate of modification of the certificate No. 1 of evidence No. 2 of this case's association).

At the time of June 2009, the Plaintiff joined the instant association by paying a contribution of KRW 180 million to the instant association, and at the time of joining the association, it was highly known that the instant association could purchase the new apartment at the lower price of KRW 33 billion at the price of KRW 480,00,000,000, and that it could purchase the new apartment at the lower price of KRW 480,000. Furthermore, the scheduled commencement date

Then, even if there is no longer long-term commencement, the value of the association member has increased, and as a result, it was made up to the extent that the seal should be paid to the premium of 4-50 million won to join as the association members.

B. The Plaintiff’s transfer of membership of the instant association also constitutes a contract brokerage

The plaintiff was running the real estate brokerage business in the name of "F" in Dongjak-gu Seoul Metropolitan Government E around 2009, but he was well aware of the terms of the union of this case or the members' premium.

In addition, on early 2009, the Plaintiff, together with other real estate brokers, mediated a contract for acquisition of the status of the union member of this case in which Defendant C joined as one of his own children, and the acquisition price was the acquisition price plus KRW 50 million in total of KRW 230,000,000,000 for the union member's contributions.

While mediating this transaction, the Plaintiff lost the agreement seal of this case formed with premium of 50 million won or more, and if the Plaintiff is only money, she would have to think that she would become a member of the instant association.

A member of the association of this case was a person who had resided in Seoul Special Metropolitan City prior to June 30, 2008 for more than 6 months and was a non-home or an owner with an exclusive area of less than 60 square meters (see Article 8 of the articles of association of the association No. 1). The plaintiff is eligible to join the association of this case but it is difficult for the plaintiff to raise the contributions of the union of this case, but it is also difficult to raise the contributions of the union of this case. It is too difficult for the plaintiff to pay the premium up to 50 million won. The money is too insufficient, and this expression was expressed to the defendant C.

C. Introduction to the Plaintiff by Defendant C of any article without premium

However, around May 2009, Defendant C was found as the Plaintiff’s licensed real estate agent office and was able to join the instant association’s member if only the Plaintiff did not have any premium without any premium. However, Defendant C was able to directly pay to Defendant B, the president of the instant association, and become able to join the association through Defendant B, because the instant association is returned to be a member and there is no premium.

Accordingly, along with Defendant C, the Plaintiff was the president of the instant association located in Dongjak-gu Seoul Metropolitan Government 1406, and Defendant B was only Defendant B.

At that time, the plaintiff was asked to whether he can become a partner if he was paid the contributions to the defendant B, and the defendant B was allowed to join the contributions if he was within 180 million won because the plaintiff met all the conditions of qualification for the union members. The plaintiff was asked several questions, such as the commencement date of the construction and the sale price of the union members, and the defendant B will enter the commencement of the construction on August 2009 and the sale price of the union members would be less than 50 million won.

In fact, the Plaintiff was a witness to directly deal with the status of a member of the Plaintiff through the acquisition of the membership status of the Defendant C through the brokerage of transaction, so, the Plaintiff was determined to join the Plaintiff without any premium, and then, it was aware that at least 50 million won will occur even if the status of the member was transferred to the Plaintiff without any premium.

(d) Admission to the Plaintiff’s association members and payment of contributions;

On June 5, 2009, the Plaintiff offered H apartment (H apartment 1 Dong 406) as security to one bank, and took out a loan of 180 million won (checks and cash) with the Defendant C, as well as the head of the instant association, located in Dongjak-gu Seoul Metropolitan Government G building 1406, and then sought B with the Defendant C, and then paid the above amount of KRW 180 million to Defendant B in cash, and received receipts.

He did not receive a receipt of evidence No. 2 and the details of the check transaction with evidence No. 3).

E. The delay in the commencement of the instant union and the occurrence of additional contribution round problems

However, Defendant B does not have about 10 days after the Plaintiff joined the association, and thus prohibited the transfer of the status of a union member (title transfer).

In addition, the association of this case did not start construction even after August 2009, which was the scheduled commencement date of construction.

The plaintiff heard that it will begin on and after November 2009, but it was delayed on November 2009, as well as on March 201, 2009. There was a story that it will begin on and after March 2010, but it was just a delay in the commencement even after March 2010.

When the commencement of construction has been delayed several times, the plaintiff has increased unstableness.

On the permanent basis, the instant association from March 2010 to its members, including the Plaintiff, paid the second members’ contribution of KRW 98 million and registration fees of KRW 10.3 million. At the time of the Plaintiff’s accession to the instant association, it was known that the Plaintiff paid KRW 180,000,000,000 to its members, and was able to purchase 480,000,000 if its members were to subscribe to the instant association. However, the Plaintiff was seriously informed of the demand of the instant association to pay a larger amount of money exceeding KRW 100,00,000,000 to its members, and this was the same as that of other members.

Since then, when the association withdraws from the association until April 30, 2010 to its members, including the plaintiff, it shall pay the principal of the contributions already paid and the interest rate of 10% per annum from the date of full payment to the association members.

It was publicly notified that he should bear the secondary contribution and the interest on arrears of 19% per annum if he/she does not withdraw by April 30, 2010 (No. 4-1 and No. 2 guidance of each member).

F. The plaintiff's withdrawal from the association of this case

Although the plaintiff did not have the ability to pay the second contribution, he did not withdraw until April 30, 2010 because he did not have been able to refer to the interest on loans ( approximately one million won per month).

However, since the plaintiff could not prepare the second contribution, it was found that the decision of withdrawal was omitted, and this problem was made to the defendant C. It was said that there was a way for the defendant C to withdraw without paying interest of 19% per annum on the second contribution.

Accordingly, the Plaintiff asked Defendant C with the defect that the Plaintiff met with Defendant B, Defendant C’s head of the partnership (Defendant B), and the head of the partnership (the head of the partnership), and the director of Nonparty C, an agent for the head of the partnership, should only leave the partnership. Therefore, the Plaintiff asked the Plaintiff as to whether it is possible to withdraw from the partnership without having to pay the I director or interest, and the I director did not pay the Plaintiff 19% interest and registration expenses per annum for the second member’s contributions, and the Plaintiff did not pay 2010 interest and registration expenses.

4. 30. It was assumed that the plaintiff will withdraw under the same conditions as that of the previous withdrawals.

Therefore, the plaintiff, around October 6, 2010, delivered to Defendant C a withdrawal letter and a certificate of personal seal from the office of Nonparty K Co., Ltd., the representative of Defendant B located in Dongjak-gu Seoul Metropolitan Government (a withdrawal letter of evidence No. 5 and a certificate of personal seal impression No. 5).

(g) An abnormal situation after withdrawal;

However, at the time of withdrawal, the Plaintiff requested that I issue a certificate of receipt to this company, which was only a letter of withdrawal, but I rejected that I did not have a receipt, even if there is no receipt.

In addition, it was found that the Plaintiff also submitted a letter of withdrawal from the partnership to the employees of the partnership in this case after approximately a week after the Plaintiff withdraws from the partnership office of this case, and the employees of the partnership were forced to say that it is impossible to withdraw from the partnership unless 19% interest and registration fee of 10,300,000,000 won are paid to the second contributions after April 30, 2010.

The plaintiff has re-exploited a letter of withdrawal that the plaintiff would not withdraw because he would play in half of the union employees.

In this regard, Defendant C was found to be a licensed real estate agent office of the Plaintiff and the Plaintiff, and the Plaintiff talked with the employees of the partnership. The Defendant C, who said that the employees of the partnership, would be well aware of about the Plaintiff, and the Plaintiff would not pay 19% interest on the registration fee of KRW 103 million and the second contribution, and was treated as the same before the withdrawal on April 30, 2010.

In this regard, the Plaintiff, along with Defendant C, posted to the above K K K corporation office a letter of withdrawal from office and a certificate of personal seal impression again.

H. Delaying the refund of contributions after the withdrawal of a member and filing a civil lawsuit against the Plaintiff’s instant association

Although the Plaintiff decided to withdraw from the association because it is difficult to accept enormous damages, such as interest on loans, etc., the Plaintiff did not receive contributions from the association of this case even after withdrawal.

The plaintiff thought that only if he withdraws, the contribution can be refunded. However, the first director agreed to pay the contribution by November 201, 201, but the time of payment was delayed on March 201, 201, and thereafter, the continuous payment was delayed.

Since the Plaintiff did not continue to refund the contributions, the Plaintiff prepared a civil lawsuit around July 201, and the text of the lawsuit was the Defendant B’s only contact with the Plaintiff who must do so.

Defendant B, around July 30, 201, entered into an agreement with the Plaintiff to refund KRW 90 million, out of KRW 180 million paid by the Plaintiff to the Plaintiff by August 5, 2011, and returned KRW 90 million to the Plaintiff by August 31, 2011, and to refund KRW 90 million by August 31, 201, and if Defendant B’s return by August 31, 201 is not possible within the agreed period, in any case until September 30, 2011, Defendant B entered into an agreement to return the said KRW 90 million, which was agreed to return by August 31, 201, and received a written statement of payment from Defendant B to the same effect (each payment note No. 6).

However, Defendant B did not comply with the above commitment in the above letter of payment. On December 2011, the Plaintiff filed a lawsuit claiming the refund of the contribution (Seoul Central District Court 201Ga137388) against the instant association and received a favorable judgment around May 2012 (Evidence 7).

I. Finding that there is no record of the Plaintiff’s payment of contributions to the instant union, and there is no material regarding the Plaintiff’s admission and withdrawal.

However, in the future, the instant union did not repay its obligations because it has no means to do so, and Defendant B did not have any nests that would be subject to criminal trials, etc. due to suspicions, such as embezzlement of the property of the instant union.

After January 2013, the Plaintiff is newly elected by the representative and officers of the instant association, and the affairs of the association.

After the change in the actual situation, the Plaintiff’s contribution of KRW 180,000 from the side of the instant association to Defendant B was not paid as the instant association, and the Plaintiff was able to confirm the fact that the Plaintiff was a member of the instant association, and was able to hear that there was no material to confirm the fact that the Plaintiff was a member of the instant association.

(j) The defendants' attitude and plaintiff's lawsuit of this case

The plaintiff asked the defendant B to the prison meeting several times to what the reasons for such a day occurred. However, the defendant B tried to settle the contribution later without clearly explaining the reasons therefor.

The plaintiff also asserted against the defendant C, but the defendant C is not liable because it has not received any money in the introduction of the plaintiff to the defendant Eul, and it does not express any explanation, and only avoid the plaintiff.

In light of such Defendants’ attitude, Defendant B, from the beginning of the instant association, acquired money from the Plaintiff without the intent to have the Plaintiff join the partnership of the instant association, and Defendant C, in collusion with Defendant B, shall be deemed to have committed the instant fraud by deceiving the Plaintiff who would have been able to join the association without any premium by accessing the Plaintiff who wanted to join the association of the instant case.

3. The occurrence and scope of joint tort liability of the Defendants

A. Defendant B’s tort liability

Defendant B, even though he did not have the intent or ability to join the Plaintiff as a member of the instant association, deceiving the Plaintiff that he would become a member of the instant association.

In addition, the plaintiff was paid KRW 180 million to the defendant B as a member's contribution, due to the plaintiff's acquisition of the qualification as a member of the union of this case (the causal relation). The plaintiff paid KRW 180 million to the defendant B as a member's contribution. This resulted in the plaintiff's property damage of KRW 180 million.

Therefore, Defendant B is obliged to be liable for tort under Article 750 of the Civil Code.

B. Defendant C’s tort liability (the relationship between Defendant and Defendant’s invitation)

As seen earlier, Defendant C, stating that it is possible to join the Plaintiff without any premium, recommended the Plaintiff to join the instant association’s membership, and directly transferred the Plaintiff to Defendant B, and the Plaintiff was at the site at the time when the Plaintiff paid a gold of KRW 180 million to Defendant B. In depth, Defendant C was involved in the instant tort.

In addition, Defendant C was in a close relationship with Defendant B because he was in the position of the director of the instant association, and around September 2010, he could withdraw from the association without paying interest and registration expenses of 19% per annum on the second contribution. On October 6, 2010 after the Plaintiff submitted a written withdrawal withdrawal notice to the instant association, Defendant C was able to withdraw from the association. After April 30, 2010, Defendant C was able to withdraw from the association after hearing that 19% per annum on the second contribution would be able to withdraw from the association and pay the registration expenses. Since Defendant C could not find any reasonable reason or motive to act, Defendant C could not, as a result, seek a written withdrawal notice of withdrawal from the association, and then, Defendant C could not have the Defendants become an employee of the instant association (the Plaintiff could not take any criminal action against the Defendants, such as the Plaintiff’s early withdrawal from the association.

In order to enable a member to be aware that he/she has withdrawn, he/she seems to have acted in this manner).

If so, in full view of the above circumstances, the defendant C seems to have acted in collusion with the defendant B to induce the plaintiff.

Therefore, Defendant C conspired with Defendant B to commit, or aids and abets at least Defendant B’s tort.

Therefore, pursuant to Article 760(1) of the Civil Act, the Defendants are obliged to pay the Plaintiff damages amounting to KRW 180 million as joint tortfeasor, 5% per annum under the Civil Act from June 5, 2009 to the date of delivery of a duplicate of the complaint of this case, and 15% per annum under the Special Act on the Promotion, etc. of Legal Proceedings from the following day to the date of full payment.

4. Conclusion;

The plaintiff's claim is accepted in all, and the main time is part of the plaintiff's claim.

참조조문

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