Plaintiff 1 and 648 (Law Firm Pacific, Attorneys Nacheon-soo et al., Counsel for the plaintiff-appellant)

Korean Asset Trust Co., Ltd. (Attorney Choi Fixed-soo et al., Counsel for the defendant-appellant)

November 2, 2004

Suwon District Court Decision 2001Gahap8346, 2002Gahap1045, 2003Gahap2014 decided Feb. 16, 2004

1. Attached 1) The judgment of the first instance court against the plaintiffs listed in the No. 1 to 639 of the list of plaintiffs is modified as follows.

A. The defendant shall pay to the above plaintiffs the amount of money stated in attached Form 3 "the amount of discount", and 5% per annum from May 26, 2001 to December 7, 2004, and 20% per annum from the next day to the full payment date.

B. Each of the above plaintiffs' remaining claims is dismissed.

2. According to the amendment of claims in the trial of the party, the judgment of the court of the first instance against the plaintiffs listed in the [Attachment 1] No. 640 to 649 of the list of plaintiffs shall be amended as follows.

A. The defendant shall pay to the above plaintiffs the amount of money stated in attached Form 3 "the amount of discount", and 5% per annum from May 26, 2001 to December 7, 2004, and 20% per annum from the next day to the full payment date.

B. Each of the above plaintiffs' remaining claims is dismissed.

3. The total costs of the lawsuit are ten minutes, which are assessed against the plaintiffs, and the remainder are assessed against the defendant.

4. The part for which no provisional execution has been declared by the first instance court among the provisions of paragraph 2(a) may be provisionally executed.

1. Purport of claim

The defendant shall pay to the plaintiffs 6% interest per annum from May 26, 2001 to the delivery date of a copy of the complaint of this case, and 20% interest per annum from the next day to the full payment date.

2. Purport of appeal

The plaintiffs' plaintiffs shall revoke the part against the plaintiffs in the judgment of the court of first instance. The defendant shall pay to the plaintiffs listed in the [Attachment 1] No. 1 to 639 the amount of appeal stated in the [Attachment 2] Claim No. 1] to the plaintiffs, 6% per annum from May 26, 2001 to the service date of a duplicate of the complaint of this case, and 20% per annum from the next day to the full payment date. The defendant shall first pay the plaintiffs listed in the [Attachment 1] No. 640 to 649 with respect to each of the above real estate stated in the [Attachment 4] List No. 1 to 640 to 649 "No. 649", the defendant shall execute the procedure for registration of transfer of ownership for each of the above real estate on the grounds of each of the above sale date stated in the [Attachment 1] List No. 640 to 649 "No. 40% of the amount of each of the above real estate in [Attachment 1] 1 to 6] 5.

[Attachment 1] The Plaintiffs, listed in Nos. 640 to 649 of the Plaintiff’s list, extended the primary claim and conjunctive claim as stated in the purport of the appeal to seek simple performance, not conditional performance, and requested only that part of the conjunctive claim, which was part of the conjunctive claim at the trial of the party. It modified the claim as described in the above’s purport of claim)

Defendant: The part of the judgment of the first instance court against the Defendant shall be revoked, and all the plaintiffs' claims corresponding to the revoked part shall be dismissed.

1. Basic facts

The following facts are without dispute between the parties, Gap evidence 1, Eul evidence 2-1 through 622, Eul evidence 3-1 through 30, Eul evidence 4-1 through 10, Gap evidence 17-1 through 3, Gap evidence 26 through 29, Gap evidence 33, Eul evidence 35 through 38, Eul evidence 40, Eul evidence 15-1 through 18, Eul evidence 18-20, Eul evidence 22, Eul evidence 32-1 through 5, Eul evidence 33-1 through 4, Eul evidence 6-1, Eul evidence 6-2, Eul evidence 6-1 through 4, Eul evidence 6-1, Eul evidence 6-2, Eul evidence 5-1, Eul evidence 6-2, Eul evidence 6-1 through 37, Eul evidence 5-4, Eul evidence 5-2, Eul evidence 6-1 to 6-4, Eul evidence 6-2, Eul evidence 5-1 to 37, Eul evidence 4-1-2

A. On June 23, 1997, the Co., Ltd. and Co., Ltd. (hereinafter the Co., Ltd.) obtained approval for the housing construction plan for newly building and selling 2,94 households, 31,94, 2,94, 2,94, 310, 310, 42, and 427,32.58, 112, 112,80,000 square meters in aggregate of the site areas of the non-commercial land (detailed lot omitted) and 112,80,000 square meters in lots from the Co., Ltd. (hereinafter referred to as the “Co., Ltd.”).

B. (Name omitted) On June 27, 1997, the Co., Ltd. (the non-party company was changed to the non-party company on March 28, 200; hereinafter referred to as the "non-party company") entered into a sale-type land trust agreement with the construction entity of the apartment of this case, which changed the construction entity of the apartment of this case from the land of this case to the non-party company on December 6, 1997, and newly constructed the apartment of this case and its ancillary welfare facilities on the land of this case after being entrusted with the non-party 112.

C. On January 21, 1998, the non-party company had obtained the approval of the announcement of the invitation of residents of the apartment of this case from February 21, 1998, set up two model houses at the Dong-dong, Dong-dong, Si, Seoyang-gu, and Geum-dong, Si, Seoyang-gu, in order to invite occupants of the apartment of this case. The non-party company announced the sale of the apartment of this case by distributing guide books for sale and advertising leafletss or publishing a sale advertisement in newspapers.

D. The Plaintiffs concluded a sales contract with the Nonparty Company in the amount indicated in the column of “Dong” and “Dong number” as of each apartment as of the date stated in the “The date of conclusion of the contract” list of the claim amount table. According to the sales contract prepared by the Plaintiffs and the Nonparty Company at the time, the contract deposit under the sales contract was paid at the time of the contract, the intermediate payment was paid in six installments, and the remainder was paid at the time of occupancy with the scheduled date of occupancy as of February 2001.

E. When the management of the non-party company becomes worse on or around February 2001, creditor financial institutions, including the Hanmi Bank Co., Ltd., the main creditor institution of the non-party company, established a trust company on or around February 28, 2001, and decided to transfer part of the business place operated by the non-party company to the newly incorporated company, and the business place whose business value is low was sold and adjusted by being kept in the non-party company as it is. The defendant was established on March 20, 201 according to the above corporate improvement plan.

F. On April 9, 2001, the Defendant entered into a land trust agreement with the non-party company on the acquisition of the instant apartment house and its site. According to the above land trust agreement, Article 4 of the above land trust agreement, “B (the Defendant) as a new trustee shall comprehensively succeed to the status, rights, and obligations under the contract, such as (sale type, lease type) land trust agreement and land trust agreement, which was concluded by the non-party company Gap as the trustee in connection with the trust business.” Article 5 of the above agreement provides that “A (the non-party company) shall comprehensively succeed to the status, rights, and obligations under the contract, such as the land trust agreement and the land trust business agreement which was concluded by the non-party company as the trustee.” On the other hand, the representative director of the non-party company, who was the representative director of the non-party company at the time, was working for the non-party company from March 20, 201 to June 31, 2001.”

(g) On August 8, 2001, the defendant published a newspaper advertisement stating "I will abide by the promise to the end," and the above newspaper advertisement stated that "I will complete the apartment of this case, minimize damage to the buyers, faithfully implement the promise on incidental facilities as agreed by the non-party company, and will use the phrase "hot spring" on behalf of the non-party company due to lack of knowledge of the hot spring law, and have recently influent situation, but the non-party company will faithfully implement the terms as agreed at the time of sale, so I will observe the promise other than the above items and the above items, and I will observe the promise if I believe the defendant."

H. Although the new construction of the instant apartment was conducted on October 200 with the scheduled completion date, the construction company failed to move into the instant apartment from February 2, 2001, which was agreed by the first non-party company and the Plaintiffs on the scheduled date of moving into the apartment due to the default of the construction company and the non-establishment of the access road to the apartment. The Defendant obtained the approval of provisional use for the instant apartment from the ordering market on May 25, 2001, and notified the Plaintiffs of the designation period from May 26, 2001 to July 24, 2001. The Plaintiffs began to move into the instant apartment from May 26, 2001.

B. On September 2, 2002, on September 2, 2002, the Defendant: (a) registered the ownership of the instant apartment under the name of the Defendant; (b) completed the registration of ownership transfer to the Plaintiffs, who paid the remainder after deducting the damages for delay due to the delay in occupancy from the balance arising from the sales contract; and (c) transferred five of the sports center, private house facilities, and shuttle bus in the instant apartment building to the council of occupants’ representatives; and (d) entered into a contract on the floor painting construction and capital works of the instant apartment parking lot with the U.S. Construction Company on September 5, 2002.

(j) On September 7, 1999, Nonparty 3 concluded a sales contract of KRW 202,211,00 with respect to the apartment of this case 101, 1701, 53 square meters among the apartment of this case with Nonparty 3, but died on May 21, 200, and Plaintiff 556 and 557,558, who is its wife, succeeded to the inheritance. The Plaintiffs paid to the Defendant the balance and late payment charges after deducting delayed compensation due to delay in occupancy from the remainder of the sales contract, and each of the above Plaintiffs registered the transfer of ownership in their names.

(k) After entering into the sales contract for the apartment of this case, the plaintiffs deceiving the plaintiffs as to the location conditions and ancillary facilities of the apartment of this case at the time of entering into the sales contract for the apartment of this case. The plaintiffs continued to file a civil petition with the party, the National Ombudsman, etc. on the ground that the non-party company did not notify the existence of a large-scale common cemetery around the apartment of this case.

2. Judgment on the plaintiffs' assertion

A. Claim for damages due to nonperformance

원고들은, 소외 회사가 이 사건 아파트에 관한 분양광고를 하면서, 신문광고, 분양안내책자, 사업설명회 및 분양을 담당한 직원들을 통하여 이 사건 아파트 단지 내에서 게르마늄 성분을 포함한 온천이 개발되며, 위 아파트의 거실바닥재를 단풍나무 원목 바닥재로 시공하고, 아파트 단지 내에 풍성한 유실수를 식재하고 테마공원을 설치하여 쾌적한 생활환경을 조성하며, 일산에서 금촌을 연결하는 4차선 도로가 2001년까지 8차선으로 확장되고, 이 사건 아파트에 인접하여 서울대학교가 이전할 예정이며, 소외 회사가 전국 유명 콘도 및 휴양시설과 제휴하여 입주자들이 누구나 콘도 회원으로서 이를 이용할 수 있으며, 문산↔용산을 연결하는 경의선 전철의 복선화가 이루어져 편리한 교통환경이 조성된다는 내용을 대대적으로 광고하였고, 원고들로서는 소외 회사의 위와 같은 광고내용을 신뢰하여 위와 같은 조건을 구비한 아파트를 공급받기로 하는 분양계약을 체결한 것이고, 소외 회사의 위와 같은 광고는 그 내용의 구체성, 반복성 및 규모에 비추어볼 때 이 사건 아파트의 청약에 해당되며, 위와 같은 온천, 유실수단지 등의 존재는 이 사건 아파트의 계약내용에 포함된다고 할 것이므로, 소외 회사로서는 온천, 유실수단지 등 위와 같이 광고한 내용과 같은 조건을 구비한 아파트를 제공할 분양계약상 의무를 부담한다고 할 것임에도, 이 사건 아파트에는 온천, 유실수단지, 테마공원이 존재하지 아니하고, 거실바닥재는 단풍나무 원목이 아닌 합판마루로 시공되어 있으며, 콘도이용권을 제공하지 아니하였고, 서울대학교의 이전 및 도로확장 공사는 예정조차 되어있지 아니하며, 전철 복선화 또한 이루어지지 아니하였으므로, 피고는 소외 회사의 위와 같은 이 사건 아파트 분양계약에 따른 채무의 불이행으로 인하여 원고들이 입은 손해를 배상할 의무가 있다고 주장한다.

Therefore, first, even if the non-party company advertised the above contents in the apartment sale advertisement of this case, and explain such contents to the plaintiffs at the time of concluding the sales contract, the above contents cannot be deemed as an offer since they do not accompany the specific contents of the object of sale or the presentation of specific terms and conditions of transaction, and it is merely an incentive to induce others to make an offer. Thus, the contents of the advertisement are not the content of the sales contract, but are not the content of the sales contract. However, if the parties agree with the intention to make the contents of the advertisement for the purpose of the contract through the process of offer and consent, it becomes the contents of the sales contract.

그런데, 갑 제2호증의 1 내지 622의 각 기재에 의하면 원고들과 소외 회사 사이에 체결된 분양계약서에 분양의 목적물은 건물과 대지의 면적 및 그 동과 호수를 표시한 아파트 1동과 이에 따른 전기, 도로, 상수도시설 기타 부대시설(공용)로 되어 있고, 기타사항(제17조)으로 견본주택 내에 시공된 제품은 특별한 사정없이 타사 제품으로 변경될 수 없고 견본주택 및 각종 인쇄물과 모형도상의 구획선 및 시설물의 위치, 설계도면 등의 표시가 계약체결일 이후 사업계획 변경승인 및 신고 등에 따라 일부 변경된 경우에는 소외 회사가 수분양자들에게 이를 통보하기로 규정하고 있을 뿐이고, 원고들이 주장하는 온천, 거실바닥재, 유실수단지, 테마공원, 서울대학교의 이전, 일산↔금촌을 연결하는 도로의 확장, 콘도이용권의 제공, 전철복선화와 관련하여 아무런 내용이나 조건이 기재되어 있지 아니한 사실이 인정할 수 있는바, 위 인정사실에 의하면 위 분양계약은 분양계약서에 표시된 아파트 1동과 이에 따른 전기, 상수도 등 통상적인 부대시설을 목적물로 하고 있다고 할 것이고, 비록 목적물의 구조, 재질, 성상 등이 견본주택 및 각종 인쇄물과 모형도에 의하여 구체화 될 것을 전제로 하고 있다고 볼 수 있기는 하나, 원고들이 주장하는 위와 같은 광고에 부합하는 아파트만을 공급하기로 한다는 의사의 합치에 관한 부분을 찾아 볼 수 없어서 위 광고내용을 곧바로 이 사건 아파트에 관한 각 분양계약의 내용으로 편입시키고 있다고는 볼 수 없으므로, 이와 같은 편입이 있음을 전제로 한 원고들의 위 주장은 나아가 살펴볼 필요 없이 이유 없다.

B. Claim for damages due to tort

(1) Occurrence of and succession to liability for damages

(A) Whether the non-party company's tort was established when the sales contract was concluded

1) The part concerning the advertisement of “hot spring”

A) The parties’ assertion

The plaintiffs asserted that, since February 198, the non-party company constructed a model house for the sale of the apartment of this case, and that, while advertising the apartment of this case through the employees in charge of large-scale newspaper advertisement, the guide book for sale, and the opening and selling of the explanatory meeting for the project, the non-party company deceivings the plaintiffs by making a false exaggerated advertisement as if the residents of this case were able to utilize the hot spring water on a regular basis, even though the hot spring water containing potumin ingredients in the apartment complex of this case did not have been melted within the apartment complex of this case, there was a hot spring containing potumin ingredients in the apartment complex of this case.

In regard to this, the defendant asserts that the spring water coming from the underground of the apartment complex of this case is above 25∑C, and since the temperature and ingredients of the spring water are not included as harmful ingredients to the human body, it falls under the actual hot spring water stipulated in Article 2 of the Hot Spring Act. Since the defendant provided the apartment complex of this case with bathing facilities using the actual hot spring water coming from the apartment complex of this case, the defendant did not have deceiving the plaintiffs in relation to the hot spring, and even though the spring water coming from the apartment complex of this case does not fall under the hot spring water stipulated in Article 2 of the Hot Spring Act, it is not unlawful even if it is accompanied by a little exaggeration or falsity within the limit permitted in light of commercial practices and the good faith principle, it is not unlawful. Thus, even if the spring water coming from the apartment complex of this case constitutes the hot spring water in this case because the spring water coming from the apartment complex of this case constitutes the actual hot spring water in its temperature and ingredients, it cannot be viewed as unlawful even if it is used in the advertisement of this case.

B) Determination

In general, accompanied by a somewhat exaggeration or false exaggeration in advertising advertising of goods is deemed to lack of deception as long as it may be acceptable in light of the general commercial practice and good faith principle. However, in a case where a false notice is made in a manner to the extent of being criticized in light of the good faith and good faith in a product publicity advertisement, the material facts of the transaction in question are considered to constitute deception (see Supreme Court Decision 99Da55601, May 29, 2001).

The evidence of No. 1 to 30, Gap evidence No. 5 through No. 10, Gap evidence No. 12, Gap evidence No. 13-1 to 3, Gap evidence No. 15, Gap evidence No. 16, Gap evidence No. 17-1 through 3, Gap evidence No. 18-1 to 4, Gap evidence No. 20-1, 22, Gap evidence No. 24 through 30, Gap evidence No. 35 through 38, Gap evidence No. 51, Gap evidence No. 51, Gap evidence No. 54, Gap evidence No. 56-1 to 3, Gap evidence No. 57, Gap evidence No. 1 to 27, Gap evidence No. 1 to 37, Gap evidence No. 6, Eul evidence No. 1 to evidence No. 57, Gap evidence No. 1 to evidence No. 6, Gap evidence No. 1 to evidence No. 7, Eul evidence No. 1 to evidence No.

ⅰ) 소외 회사는 1998. 2.경부터 1999. 5. 28.까지 일간신문을 통하여 이 사건 아파트의 분양광고를 하면서, 아파트 단지 내에 2곳을 표시하여 온천 마크(♨)와 함께 “게르마늄 온천 용출 지점”이라고 기재하였고, 온천욕을 하고 있는 여인의 사진과 사진 밑에 “온천사우나 단지 내에 유황·게르마늄 온천을 개발하여 사우나시설을 갖추고 있습니다”라고 하였으며, “국내 최초, 단지 내에 게르마늄 온천이 펑펑”이라고 기재하여 소외 회사가 이 사건 아파트 단지 내에서 게르마늄 온천을 개발하였다는 내용을 광고하였다.

ⅱ) 소외 회사는 1998. 2.경부터 고양시 일산구 장항동 및 파주시 금촌동에 설치한 견본주택에 대형스크린을 설치하여 온천욕 사진을 게시하여두고, 견본주택에서 “게르마늄 온천수가 펑펑 나오는 국내 최초 온천 아파트”라는 내용의 홍보용 비디오 테이프를 상영하였으며, 이 사건 아파트에 대한 광고전단 및 분양안내책자에도 온천욕을 하고 있는 여인의 사진을 게재하고, 아파트 단지 설명도에 온천 마크(♨)와 함께 “게르마늄 온천 용출 지점”이라고 표시하였고, “프랑스 루르드 광천수보다 높은 게르마늄을 함유한 온천이 펑펑! 성인병과 피부미용에 좋은 게르마늄 온천 사우나를 온 가족이 수시로 즐기실 수 있습니다”라는 문구가 기재된 광고전단 및 분양안내책자를 배포하였을 뿐 아니라, 1998. 6. 3.경에는 수분양자들에게 이 사건 아파트에 게르마늄 온천 시욕장을 설치할 계획이라는 안내문을 송부하고, 아파트 부근에 온천 시욕장을 안내하는 입간판을 설치하기도 하였으며, 당시 견본주택에 근무하던 소외 회사의 직원들은 수분양자들에게 이 사건 아파트 단지에서 게르마늄 성분을 포함한 온천수가 용출되어 아파트 입주민들은 단지 내 상가에 설치되는 온천사우나를 무료로 이용할 수 있다고 설명하거나 또는 아파트 각 세대별로 온천수가 들어와 집안에서 온천욕을 할 수 있다고 홍보하기도 하였다.

iii) Meanwhile, on May 12, 1998, when three months have elapsed since the commencement of the advertisement of hot spring, including potumin ingredients, in the apartment of this case, the non-party company requested the Korea Resources Institute (after that the name was changed to the Korea Geo Resource Institute) to analyze the ingredients of stack water from two out of the apartment complex of this case, and was notified by the Korea Resources Institute on May 25, 1998 that the non-party company detected 0.027§¯/liter and 0.07 Klumumumin ingredients from the Korea Resources Institute on 198.

4) Around May 2, 1999, the non-party company received the notification that a civil petition was filed with respect to the advertisement that the fluium hot spring was developed within the apartment complex of this case from the Papju City. On May 27, 1999, the non-party company made a reply to take measures to delete the phrase "hot spring" from the apartment advertisement from the end of the Papju city to the end of the Papju city, and to recover the entire distributed advertising leaflets, but the non-party company continued to distribute the advertising leaflets with the same contents as the previous one. On June 2, 1999, the non-party company visited the sample house on the same day to verify the advertising leaflets of the apartment complex of this case where the "hot spring" advertisement was published and confirmed the signs, video tapes, etc. installed within the apartment complex of this case, which was located within the employees of the non-party company working for the model house of this case, and the non-party company continued to sell the hot spring water of this case through the Internet newspaper within 20.

v) On October 16, 2001, the non-party company received a corrective order from the Fair Trade Commission on the ground that the non-party company violated the Fair Trade Act by making an unfair advertisement that is likely to mislead consumers as if the non-party company had a outstanding hot spring source in the apartment complex of this case, unlike the fact, while advertising the apartment of this case through central daily newspapers, carpets and leafletss, etc.

vi) The non-party company obtained only the permission for the development and utilization of the apartment complex of this case from Papju City on June 30, 200 pursuant to Article 7 of the Groundwater Act and Article 8 of the Enforcement Decree of the Groundwater Act, and there was no permission for the development of hot spring in the apartment complex of this case at the time of approval of the housing development plan for the apartment of this case and thereafter thereafter, there was no permission for the development of hot spring in the apartment complex of this case. In addition, the temperature of the drinking water coming out of the underground groundwater of this case 119 units is from 22 m2 to 15.0 mC, underground depth is from 5.7 m26.7 m3m, average underground ion rate (the increase in the temperature of the drinking water coming out per 100m high) is 2.09 cm/100 m, average 20 m/ 100 m200 m20 m/ 100 m200 m of the apartment ingredients of this case.

vii) On the fifth floor of the apartment building of this case, only sports facilities for residents and a shower room for both men and women (a total of 1,180.323 square meters in size) are installed on the second floor of the apartment building of this case. There are bathing facilities (area 936.514 square meters in size). The Defendant operated the above bathing facilities as exclusive facilities for residents, and transferred the above bathing facilities to the resident representatives’ meeting of the apartment building of this case on September 2, 2002. The above bathing facilities are operated using water supply water.

First, with respect to whether there exists a hot spring complex in the apartment complex of this case, the hot spring complex of this case meets the requirements under the provisions of Acts and subordinate statutes or at least pursuant to social norms, it is necessary to have a source of water which has an adequate quantity of hot spring so that it can be developed to the extent that it can be distinguished from ordinary underground water, and with respect to the hot spring of this case, Article 2 of the Hot Spring Act shall be the hot spring of 25 degrees or above, and its ingredients shall not be harmful to human body". Article 8 (1) of the same Act provides that "the person who intends to excavate land for the purpose of generating hot spring water shall obtain permission from the head of Si/Gun under the conditions as prescribed by the Presidential Decree, and Article 13 (1) of the same Act provides that the person who intends to use hot spring water for public use or for drinking or heating purposes shall not obtain permission from the head of Si/Gun for the purpose of using hot spring water of this case," and that the person shall not obtain permission from the head of Si/Gun for the same purposes as prescribed by the Presidential Decree.

However, according to the above facts, the non-party company posted an advertisement that shows that there are excellent hot spring ingredients in the apartment complex of this case without following specific ingredients analysis processes or procedures for hot spring development stipulated in the Hot Spring Act, as to whether the water temperature, ingredients, and adequate daily quantity of water emitted within the apartment complex of this case from February 198 until the commencement of the apartment sale advertisement of this case meet the requirements of hot spring as stipulated in the Hot Spring Act, and whether the water temperature, ingredients, and adequate daily quantity of water emitted within the apartment complex of this case contain large quantity of water used for the human body, etc.

Next, as to whether the non-party company deceivings the plaintiffs in relation to the apartment of this case in selling the apartment of this case, the fact of the above recognition that the residents can utilize hot spring as incidental facilities of apartment complex because of the development of hot spring in the new apartment complex in apartment complex, even if the contents of apartment sale contract do not itself form the contents of apartment sale contract, it can be the motive for buyers to conclude apartment sale contract, and the main contents of incidental facilities advertised by apartment buyers are important matters to decide whether to conclude apartment sale contract with the purchaser of apartment lot by advertisement. It constitutes a case where the non-party company's hot spring advertisement constitutes a case where the non-party company notifies specific facts as above, and as seen above, the non-party company's advertisement constitutes a case where the non-party company continued to use the hot spring lot of this case's apartment of this case's new apartment with the contents that the hot spring lot of this case will be used as incidental facilities of apartment complex, and it is difficult for the non-party company to announce the contents of the "the non-party company's new hot spring sale order" as an advertisement of this case's business.

2) The part concerning the existence of “joint cemetery”

A) The parties’ assertion

The plaintiffs asserts that a large-scale common cemetery exists in the vicinity of the apartment complex of this case, and that the conditions of location around the apartment complex are important matters in the conclusion of the apartment sale contract or the evaluation of the value thereof, so the non-party company has a duty to notify the plaintiffs of the fact that a large-scale common cemetery exists in the vicinity of the apartment complex of this case at the time of conclusion of the sale contract.

In regard to this, the defendant argues that the common cemetery existing after the apartment complex of this case is a park cemetery operated by the foundation park, which is operated by the foundation park of this case, and that the above park cemetery is not a target facility in light of the situation of its management and use, and that the so-called so-called "the so-called "the so-called "the so-called "the so-called park cemetery" did not impose a separate father with regard to the existence of the park cemetery at the time of the approval of the project plan for the development of the apartment of this case and the approval of the invitation for the sale of the apartment of this case. The existence of the above park cemetery does not constitute the contents of the apartment sale contract of this case. Thus, the non-party company cannot be deemed to have a duty to notify the non-party company about the existence of a park cemetery, and the non-party company established a prospect team at a height of about 20 meters adjacent to the main entrance of the apartment of this case at the time of the sale contract of the apartment, and the above cemetery exists in the view of the above observation team.

B) Determination

Therefore, in order to recognize the act of deception of the non-party company against the plaintiffs with respect to the common cemetery subsequent to the apartment complex in this case, the act of deception should be recognized by omission without notifying the plaintiffs despite the duty to notify the non-party company of the act of deception, or by act making an active speech and behavior that does not exist differently from the fact.

First, the seller's duty to notify the buyer of the sale of real estate by omission is not widely acknowledged, but is not a seller's duty to notify the buyer of the specific circumstances related to the sale and purchase, and thus, the seller is aware that the effect of the transaction in question or the performance of obligations arising from the sale and purchase could cause a danger that the buyer would not secure his/her right to the subject matter of the sale and purchase without notifying the buyer of such circumstances, and the buyer is obligated to notify the buyer of such circumstances in advance in accordance with the principle of trust and good faith if he/she was notified of such circumstances, and constitutes a deception, which constitutes a tort where the seller has to use the buyer's mistake without notifying the buyer of such circumstances (see, e.g., Supreme Court Decisions 2004Da20890, Jul. 8, 2004; 91Do2698, Dec. 24, 1991).

Therefore, in light of the above duty to notify the non-party company of the existence of a common cemetery in the vicinity of the apartment complex of this case, it can be seen that the non-party company did not know of the existence of the above common cemetery and the non-party company's right to purchase and sell the apartment complex of this case by using the evidence No. 30, Gap evidence No. 14 through No. 10, Gap evidence No. 14-16, Eul evidence No. 13, No. 14, No. 58, No. 47, No. 54-1, No. 56, No. 56, and No. 56, No. 1 and No. 56, and the purport of the whole on-site inspection of the court of first instance, it is difficult to recognize the existence of a common cemetery No. 118 and No. 116, No. 206, Dec. 4, 200>

Next, with respect to deception by commission, the public health zone, the non-party company's access to the site to prevent the plaintiffs who visited the site of the apartment site of this case from confirming the existence of the common cemetery located behind the site of the apartment site at the time of the conclusion of the sale contract, the measures are taken to conceal the situation of the forest after the site of the apartment site, or some plaintiffs are expected to transfer the above forest land to the Seoul National University, or the common cemetery is located after the apartment site of this case. However, although the plaintiffs are located after the apartment site of this case, there is no evidence to acknowledge the existence of evidence No. 20-1, No. 20-2, and some parties' personal examination of the first instance court against the plaintiff 167 at the first instance court, as seen above, that it is impossible to conceal the existence thereof or make any false statement about it, and there is no evidence to acknowledge the evidence No. 32-1, No. 530-1, No. 51, No.

3) Part concerning the construction of “floors”

A) The parties’ assertion

At the time of entering into the sales contract of the apartment in this case, the Plaintiffs advertised the high-class large-quality large-scale large-scale large-scale trees as if they were to use the living room floor materials through the apartment sales advertisement and the apartment sales guidance book, and the Plaintiffs concluded the apartment sales contract with the belief that large-scale large-scale trees will be used as living room materials according to the contents of the apartment sales advertisement of the non-party company, but the non-party company asserts that the non-party company deceivings the Plaintiffs by constructing the apartment in Indones acid as the living floor

In regard to this, the defendant asserts that in the apartment sale advertisement, when advertising that the floor of the living room is constructed as "original wood", it refers to the so-called "timbering (contested floor) with the thickness of 0.6 to 4mm above the apartment board," and that it is generally recognized that the original floor board is "contesting (contested floor) with a wood plate, not a plastic floor, on the combined board." In addition, at the time when the non-party company obtains the initial approval of the apartment sale from the Papju City, it was constructed as "Troing" with regard to the living room floor material, and in general, in the event that the non-party company constructs the apartment floor of the living room from the floor like the apartment living room to the floor material, it is rarely impossible to mislead the plaintiffs in relation to the living room material because there is no reason to believe that the non-party company did not mislead the plaintiffs in relation to the apartment floor.

B) Determination

i) As to the plaintiffs' assertion that the contract of 32 square, 43 square, 53 square and 64 square among the apartment of this case was entered into

First, in the case of evidence Nos. 3-1 through 27, evidence Nos. 5 through 10, evidence Nos. 15, evidence Nos. 16, evidence Nos. 19-1, 11, 12, evidence Nos. 15-1 through 3, evidence Nos. 25-1 through 26-27, evidence Nos. 1 through 27, Non-Party 1, Non-Party 2, and Non-Party 4’s testimony of the first instance trial witness, Non-Party 1, Non-Party 2, and Non-Party 4’s construction of the floor, Non-Party 3’s construction of the apartment building at the time of sale in lots, and Non-Party 4’s construction of the apartment building at the time of sale in lots by Non-Party 4’s construction of the floor, and Non-Party 3’s construction of the apartment building at the time of sale in lots, the non-Party 3’s construction of the apartment building at the first instance trial.

In light of the language meaning of the terms and the degree of ordinary perceptions on it, whether alternative expressions that do not harm the language economy can be made in light of the nature of advertisements emphasizing the unity, and whether the non-party company made efforts to provide accurate information even through other materials should be determined by comprehensively taking into account the following factors: (a) whether a timber-orienteding constructed by the non-party company on the apartment of this case can be deemed the same as the original timber floor used in the sale advertisement, etc. as the defendant alleged in the defendant; and (b) whether there is an effort to provide accurate information through other materials.

First of all, there is a literal difference between the raw timber, which is the material of furniture or flooring, and in terms of manufacturing process, structure, quality, preference, etc., it cannot be said that it is identical in terms of social norms. Therefore, in order to ordinarily express it as the original floor material, the entire timber of the floor material or at least a significant part of it should be considered as the original timber.

Then, among expressions used through a propaganda guide for timbering (combined board floor) by some floor materials manufacturing companies or building companies, the expression "vers" or "vers" is not related to material, but can be seen as referring to the general floor made of wood not only the floor made of the original wood but also to the general floor made of the wood. Thus, it cannot be concluded that there is falsity. In the case of a building building, the expression "natural wood floor" or "original wood floor material" containing the parts of "original wood" uses an expression that may lead to different perceptions about its material, but in the case of a building building building, it cannot be deemed as false as a whole, since it can be seen as a whole, since it cannot be said that there is any falsity, and in the case of a partial building building company, it cannot be said that it has been made by any other means, but if it was made by using a false statement without any additional explanation, it should not be said that it was a false advertisement of the non-party company.

In addition, in advertising, the non-party company was able to avoid the falsity of expression easily without impairing the unity of using the method of indicating the floor material or generally displayed it (as above, the above "timber floor" or "ion-do floor") or using any further specific method (as referred to as "the floor of original wood attachment, etc."), and it seems that the falsity could have been reduced by providing additional information on the floor material through a guide for sale in lots or a model house, and the testimony by non-party 4 of the witness of the trial party alone is insufficient to recognize the fact that there was a practice of expressing the timbering as the original floor material in the construction-related industry, and there is no evidence sufficient to acknowledge otherwise.

Ultimately, it is a false or similar exaggeration that the non-party company's advertisement of the living room floor of an apartment as a wood-orienteding (joint board floor) added by 0.4 to 0.6mm thick above the composite board.

Furthermore, the non-party company's distribution of advertising leaflets in daily newspapers or advertising leaflets to the applicants for the sale of apartment lots who visited the model house is not itself an offer for the sale of apartment lots. However, the apartment sales company like the non-party company's apartment sales company uniformly notifies many unspecified consumers of the contents of the housing supply contract through the advertisement complex and the advertisement guide book, etc., and made the buyers enter into a standardized housing supply contract with several buyers after allowing the buyers to subscribe for the supply of housing in accordance with the contents of the contract. Unless there are special circumstances, as multiple buyers, they enter into an apartment sale contract with the trust that they will be supplied with the apartment equipped with the same conditions as the advertising complex and the advertisement guide book, and the non-party company engaged in the supply of housing and the sale of apartment lots, which also knew or could have known such circumstances, and thus, it constitutes a fraudulent act that is difficult to be seen as being the time of sale in light of the general commercial transaction practices and the good faith principle.

ii) As to the plaintiffs' assertion that the contract of 19 square and 22 square among the apartment of this case was entered into

Of the plaintiffs, the plaintiffs 17, 88, 11, 121, 137, 149, 51, 55 and 22-type apartments 35, 40, 41, 43, 45, 51, 57, 62, 64, 67, 78, 81, 82, 83, 834, 97, 97, 94, 257, 246, 34, 97, 245, 97, 245, 97, 245, 364, 97, 25, 364, 97, 245, 36, 97, 90, 93, 96, 97, 100, 103, 104, 105, 101, 215, 214

4) The part pertaining to “theme Park and the lost water”

A) The parties’ assertion

The plaintiffs asserts that in the advertisement of the apartment of this case, the non-party company was deceiving the plaintiffs by advertising as if the non-party company planting a clean drinking water on the apartment of this case and building theme park to create a pleasant living environment.

In regard to this, the defendant asserts that the apartment of this case, as the present apartment is planted in accordance with the content of the advertisement, and theme park is created, there is no deception against the plaintiffs.

B) Determination

In light of the evidence Nos. 3-1 through 27, evidence Nos. 5 through 10, evidence No. 12, evidence No. 15, evidence No. 16, evidence No. 19-1, 6 through 8, evidence No. 31, evidence No. 19-1, evidence No. 31, testimony of Non-Party 1 by the witness of the first instance court, the party principal questioning of Plaintiff No. 167 by the court of the first instance, as a result of the on-site verification of the first instance court, the apartment of this case was advertised to be “the optimal dwelling that is convenient to the nature of the apartment of this case, such as the natural forest surrounding the complex and the beautiful water in the complex, and the artificial leisure apartment of this case,” and according to the advertising complex and the sale guide produced and distributed by the non-party company, “the apartment of this case, the apartment of this case and the artificial leisure apartment of this case,” and the artificial apartment of this case, “the artificial apartment of this case were inserted and 2,” to be inserted.

First, according to the health stand, Eul evidence Nos. 83-3, 4, Eul evidence Nos. 84, Eul evidence Nos. 84, Eul evidence Nos. 90, Eul evidence Nos. 90, Eul evidence Nos. 93-6, 19, and 20, and the result of the on-site inspection by the court of the first instance, it is extremely certain that trees are planted in the slope of the apartment of this case at 129 units, and there are a large number of times that can be seen to have been planted after the institution of this case at the slope of the above 101 units, 102 units, 107 units, and 107 units outside the fence of this case. However, in light of the above location, the degree and timing of planting, and the ease of access, it is obvious to be false or exaggerated. In light of the above advertising period, the plaintiffs' contents and contents of the advertisement of the non-party company as seen earlier, it is reasonable to view it as a government-invested institution and government-invested institution.

Next, comprehensively taking account of the overall purport of the pleadings in each image of C, E, E, E, E, E, E, 7, and 8 with respect to the remainder of theme park, except for the above part of the lost means, the apartment of this case has a light of the height of the mix in the form combined with the original passage and Gu, and a half-proof space in the surrounding area, which is a stone package, and there has been a large and small number of artificial rock walls with a height of the height of the water in the 124 m above, and there has been several events in the front. According to the above facts, the non-party company used the expression of theme park in the advertisement, but it is difficult to view that the apartment of this case was installed in the advertisement of this case with the expression of "the artificial park" and the expression of "the artificial width" as "the artificial park of this case" and the expression of "the artificial width" of this case cannot be seen as the expression of the general apartment of this case, such as "the artificial park of this case."

5) The part concerning the “extension of the road between Ilsan and Geumsan villages” and the “Seoul Metropolitan Area Relocation”

A) The parties’ assertion

The plaintiffs asserted that the 4th line road connecting the gold village in the mountain was extended to the 8th line by 2001 while advertising the apartment of this case by the non-party company for the sale of the apartment of this case, and that the 8th line was deceiving the plaintiffs by making a false advertisement as being to be transferred by the Seoul National University, adjacent to the apartment of this case.

In regard to this, the defendant argued that the advertisement of apartment sales in this case by the non-party company was advertising the plan to transfer the apartment building in this case to the Simju City on July 9, 1997, and thus, it did not deceiving the plaintiffs.

B) Determination

살피건대, 갑 제3호증의 1 내지 30, 갑 제5호증 내지 갑 제10호증, 갑 제12호증, 갑 제15호증, 갑 제16호증, 갑 제18호증의 1 내지 4, 갑 제19호증의 1, 9, 10, 갑 제25호증, 갑 제31호증, 갑 제57호증의 각 기재 및 영상, 제1심 증인 소외 1의 증언, 제1심 법원의 원고 167에 대한 당사자본인신문결과에 변론 전체의 취지를 종합하면, 소외 회사는 일간신문에 게재된 이 사건 아파트의 분양광고 및 광고전단지, 분양안내책자에 이 사건 아파트를 광고하면서, “사통팔달이라 교통이 시원합니다. 금촌↔일산간 8차선 도로확장”이라거나 “금촌↔일산 4차선 도로 확장공사중(향후 8차선 확장 2001년)”, “서울대이전(예정)”이라고 광고하였으나, 소외 회사가 이 사건 아파트의 분양광고를 할 당시에는 금촌↔일산을 연결하는 4차선 도로의 확장공사가 진행되고 있지 아니하였을 뿐 아니라, 위 4차선 도로의 확장공사나 서울대학교의 이전은 예정조차 되어 있지 아니하였으며, 또 소외 회사는 2001. 10. 16. 공정거래위원회로부터 소외 회사가 중앙일간지, 카탈로그 및 전단지 등을 통하여 이 사건 아파트 분양광고를 하면서 사실과 다르게 서울대학교가 이전할 예정인 것처럼 소비자를 오인시킬 우려가 있는 부당한 광고행위를 하여 공정거래법을 위반하였다는 이유로 시정명령을 받은 사실을 인정할 수 있고, 을 제14호증의 2의 기재만으로는 이를 번복하기에는 부족하며, 달리 반증이 없는 바, 신규로 분양되는 아파트의 교통환경이나 교육환경은 입주자들의 생활환경을 결정짓는 요인으로서 분양계약 체결여부를 결정짓는 중요한 사항이라 할 것인데, 위에서 본 바와 같이, 소외 회사는 일산↔금촌을 연결하는 4차선 도로의 확장공사가 진행중이지도 아니하였고, 위 4차선 도로가 8차선 도로로 확장될 것이라거나 또 서울대학교가 이전할 것이라고 예정할 근거가 없음에도 불구하고 이 사건 아파트의 분양광고에 일산↔금촌을 연결하는 4차선 도로의 확장공사가 진행 중이라거나 2001년까지 8차선 도로로 확장될 예정이며, 서울대학교가 이전할 예정이라고 구체적인 허위사실을 고지하였는데 이는 일반 상거래의 관행과 신의칙에 비추어 시인되기 어려운 기망행위에 해당한다고 봄이 상당하므로, 원고들의 이 부분 주장은 이유 있다.

6) The part on the "condo membership" and "condomination of pre-Korean iron bars"

A) The parties’ assertion

원고들은, 소외 회사가 이 사건 아파트의 분양광고에서 소외 회사가 전국 유명 콘도 및 휴양시설과 제휴하여 입주자들이 누구나 콘도 회원으로서 이를 이용할 수 있다고 광고하였고, 문산↔용산을 연결하는 경의선 전철의 복선화가 이루어져 편리한 교통환경이 조성된다고 광고하였으나, 소외 회사는 입주자들에게 콘도 이용혜택을 제공하지 아니하였고, 전철 복선화도 이루어지지 아니하였다고 주장한다.

이에 대하여 피고는, 원고들이 이 사건 아파트에 입주한 이후 피고가 콘도 회원권 30구좌를 구입하였고, 이를 이 사건 아파트 입주자대표회의에 인계하여 원고들이 이를 이용할 수 있도록 하였으나 입주자대표회의에서 위 콘도 회원권의 인수를 거부하고 있으므로, 콘도 회원권과 관련하여 원고들을 기망한 사실이 없고, 문산↔용산을 연결하는 경의선 전철 복선화는 당초 2001년 완공을 목표로 공사가 진행되었으나 사정변경으로 인하여 공사가 지연되고 있을 뿐, 소외 회사가 원고들을 기망한 것은 아니라고 주장한다.

B) Determination

살피건대, 갑 제3호증의 1 내지 27, 갑 제5호증 내지 갑 제10호증, 갑 제15호증, 갑 제16호증의 각 기재에 의하면, 소외 회사가 이 사건 아파트에 대한 분양광고에서 ”전국 유명 콘도 이용혜택, 제주도, 도곡, 설악 등 유명 콘도 및 휴양시설과 제휴하여 입주자 누구나 회원의 혜택을 누릴 수 있습니다“, “문산↔용산”을 연결하는 경의선 복선 전철화가 2001년 완공예정“이라고 광고한 사실은 이를 인정할 수 있으나, 한편 을 제11호증의 1 내지 7, 을 제13호증, 을 제14호증의 1, 을 제29호증, 을 제42호증의 1 내지 11, 을 제43호증의 1의 각 기재에 제1심 증인 소외 2의 일부증언에 변론 전체의 취지를 종합하면, 피고는 2002. 4. 9. 소외 일성리조트 주식회사로부터 ‘일성콘도미니엄’ 회원권 30구좌를 대금 242,520,000원에 구입하여 이를 2002. 12. 5. 이 사건 아파트 입주자대표회의측에서 인수하도록 통지하였고, 철도청이 1997년경 서울↔문산 간 경의선 전철 복선화계획을 발표하였고, 파주시 또한 1997. 12.경 2001년까지 총 연장 46.4㎞에 이르는 용산↔문산 간 경의선 전철 복선화 계획을 내용으로 하는 ”2016년 파주도시기본계획안“을 수립하였으며, 1998.경부터 위 경의선 전철 복선화 사업이 일부 구간에서 진행되고 있는 사실을 인정할 수 있는바, 위 인정사실에서 본 바와 같이, 소외 회사가 한 콘도미니엄 이용에 관한 광고내용이 입주자들 모두에게 1인 1회원권을 제공하겠다는 내용이라고는 보기 어렵고, 원고들이 입주함과 동시에 피고가 콘도미니엄 이용혜택을 제공하여야 하는 것이라고 보기도 어려우므로, 피고가 콘도회원권 30구좌를 구입하여 이를 입주자대표회의에 인계함으로써 콘도 이용혜택에 관한 광고내용을 이행하였다고 봄이 상당하여 콘도 이용혜택과 관련하여 소외 회사가 원고들을 기망하였다고는 볼 수 없고, 소외 회사의 광고내용과 달리 2001년까지 용산↔문산을 연결하는 경의선 전철 복선화가 완료되지 못하였다 하더라도, 위 경의선 전철 복선화 계획은 철도청 및 파주시에 의해 계획이 수립되어 공사가 진행되고 있으므로, 이와 관련하여 소외 회사가 원고들을 기망하였다고 볼 수 없으므로, 원고들의 이 부분 주장은 이유 없다.

(B) Indemnity obligations and succession

위 인정사실에 의하면, 소외 회사는 이 사건 아파트에 대한 분양광고를 하면서 이 사건 아파트 단지 내에서 온천수가 용출되고, 이 사건 아파트 중 32평형, 43평형, 53평형 및 64평형의 거실바닥재를 ‘단풍나무 원목 바닥재’로 시공하며, 아파트 단지 내에 풍부한 유실수단지를 조성하고, 아파트 단지에 인접하여 서울대학교가 이전할 예정이며, 일산↔금촌을 연결하는 4차선 도로가 2001년까지 8차선 도로로 확장될 것이라는 허위 과장광고를 게재하여 원고들을 기망하였다 할 것이므로, 소외 회사는 이로 인해 원고들이 입은 모든 손해를 배상할 의무가 있다할 것인데, 피고는 2001. 4. 9. 소외 회사와 사이에 이 사건 아파트 및 그 부지에 관한 토지신탁사업 양수도 계약을 체결하여 이 사건 아파트에 관한 소외 회사의 영업을 양수하였고, 이에 따라 소외 회사로부터 이 사건 아파트의 분양계약과 관련한 소외 회사의 지위를 포괄적으로 승계하였으며, 한편, 위에서 본 피고의 2001. 8. 8.자 신문광고는 수분양자들을 광고의 대상으로 하고 입주의무 등 분양계약을 이행한다는 것 외에도 소외 회사가 분양 당시에 한 약속을 지키겠다고 다짐하는 내용으로 되어 있는 점, 피고는 양수한 영업을 계속하기 위하여 수분양자들을 설득할 필요가 있어서 위와 같은 광고를 게재하게 된 것으로 보이는 점, 피고는 소외 회사의 분양자로서의 지위를 승계한 점, 수분양자인 원고들로서는 소외 회사가 한 분양광고의 허위 여부를 대부분 입주시기가 되어야 알 수 있었을 것인 점, 위 신문광고의 내용 중에 온천이라는 표시를 사용한 것에 대한 사과가 포함되어 있기는 하나 이는 법령상의 제한을 이유로 하고 있을 뿐이고 온천수가 용출되지 않는다는 내용이 아니어서 이 부분에 관한 책임이 없다는 취지가 담긴 것이 아닌 점 등에 비추어 피고는 위 광고로써 원고들을 비롯한 수분양자들에게 이 사건 아파트에 관한 영업으로 인한 채무 전부를 인수할 것을 광고하였다고 할 것이고(한편, 피고의 다음과 같은 주장, 즉 원고들이 소외 회사의 부실화로 인하여 피고가 설립된 경위를 알고 있어서 피고의 채무인수가 있는 것이라고 신뢰하지 않았고, 그 신뢰를 보호할 필요가 없다는 등의 주장은 위 광고의 해석에 관한 주장으로 보고 이를 받아들이지 아니한다), 영업으로 인하여 발생한 채무란 영업상의 활동에 관하여 발생한 모든 채무를 말한다고 하여야 할 것이어서 불법행위로 인한 손해배상채무도 이에 포함되므로( 대법원 1989. 3. 28. 선고 88다카12100 판결 참조), 피고는 특별한 사정이 없는 한 원고들이 소외 회사의 분양광고에 관한 기망행위로 입은 모든 손해를 배상할 의무가 있다.

(C) Defendant’s assertion

1) On April 9, 2001, the defendant did not take over all the land trust business operated by the non-party company. At the time, the non-party company was selected only 13 business places which are relatively superior among the 64 land trust business places, and the defendant was transferred the business from the non-party company. As the defendant was transferred the business from the non-party company according to the asset transfer method of the non-party company's assets and liabilities among the non-party company's business, this is not a business transfer under the Commercial Act. In addition, the defendant and the non-party company concluded a contract of limited acquisition by specifying the assets and liabilities that are transferred from the non-party company to the defendant in relation to the contract of the apartment of this case and the land trust business of this case. Since the non-party company's liability for damages against the plaintiffs in relation to the contract of the apartment of this case is not included in the scope of the non-party company's liabilities that the defendant acquired by the non-party company.

On April 9, 2001, the defendant entered into a contract with the non-party company for the acquisition of the apartment house of this case and its site. The defendant, as a new trustee, agreed that the non-party company will comprehensively succeed to the status and rights and obligations of the contract concluded with respect to the trust business as a trustee, and most employees including the representative director of the non-party company continued to work for the defendant company. The defendant obtained approval for temporary use of the apartment of this case on May 25, 2001 from the strike, received the approval for temporary use of the apartment of this case from the plaintiffs and completed the registration for ownership transfer of the apartment of this case. The defendant's assertion that the non-party company was scheduled to conduct business in accordance with the sale contract, such as paying the balance of damages for delayed occupancy of apartment, and that the non-party company comprehensively transferred the apartment building of this case to the non-party company of this case and the non-party company of this case's real estate title to the non-party company of this case's real estate title, and that the defendant acquired the contents of the apartment building of this case's site and the land of this case's trust.

2) Article 48(3) of the Trust Act provides that "the new trustee may exercise his/her right on the handling of the trust affairs within the limit of the trust property." Thus, in the event of a replacement of the trustee, the scope of the debt to be borne by the new trustee against the third party shall be limited within the limit of the trust property. In addition, the new trustee shall be held liable only for the claim lawfully incurred, and the former trustee shall not be held liable for the debt incurred by his/her negligence in the management of the trust property. The defendant acquired the land trust business from the non-party company for the apartment and its lot and transferred its status to the trustee. However, in accordance with the provisions of Article 48(3) of the Trust Act, the non-party company's liability for damages arising from the tort committed by the non-party company to the plaintiffs in relation to the sales contract of the apartment, as well as the defendant's acquisition of the land trust business of this case and its lot from the non-party company, and the defendant shall not be held liable for the damages incurred by the new trustee within the limit of the trust property under the new Trust Act.

3) The defendant, around January 21, 1998, obtained approval for the invitation of occupants to the apartment of this case, the apartment sale price was not autonomous time. The apartment sale price of this case was approved from the right-to-door viewing, and the appraisal price of the apartment site of this case was determined based on the standard construction cost determined by the Ministry of Construction and Transportation. The existence of hot spring is not considered in calculating the sale price of the apartment of this case, and it cannot be viewed that the plaintiffs suffered any loss because the apartment of this case was not set high since the apartment of this case, considering that there was no significant difference between the appraisal price of the apartment site of this case and the appraisal price of the apartment site of this case and the construction cost of the apartment of this case can not be determined based on the standard sale price of the apartment of this case and the appraisal price of the apartment site of this case can not be determined based on the first appraisal price of the apartment site of this case, because the non-party company's appraisal of the apartment site of this case cannot be acknowledged that there was no difference between the construction cost and the construction cost of the apartment site of this case.

4) The defendant asserts that, as part of the plaintiffs entered into a sales contract before February 15, 1998 prior to the commencement of the advertisement related to the hot spring of the non-party company, it is irrelevant to the damages caused by the deception by the hot spring advertisement, and that part of the plaintiffs did not own ownership of the apartment of this case due to resale between July 15, 201 and March 28, 2003, etc., there is no claim for damages.

However, even if some plaintiffs concluded the sales contract prior to the commencement of the advertisement of the non-party company's hot spring (hereinafter "the advertisement"), the contract date and the advertisement date of the defendant's assertion adjoining to the contract date, and the non-party company advertised and explain hot spring in various ways, and even if there was a false advertisement after the contract was made, it is considered that all the plaintiffs entered into the sales contract under the conditions linked to the hot spring advertisement or explanation. Even if there was a false advertisement after the contract was made, such false advertisement also has an influence on the decision-making of the buyer's property right and also has mental suffering. Therefore, damages arising therefrom should also be compensated, unless there are special circumstances. ② Even if some of the plaintiffs reselled the contract or cancelled the contract, unless there are special circumstances, the damage claim already occurred is not transferred or extinguished, and the time when the defendant reselled the contract and the contract cancellation was made after the occupancy date of the non-party company's deception is revealed, and there is no reason to acknowledge this part of the defendant's assertion.

(2) Scope of damages

(A) Property losses

The plaintiffs entered into a sales contract with the purchase price higher than 20% of the purchase price of the apartment in this case due to the deception through the false or exaggerated advertisement of the non-party company. Therefore, the plaintiffs suffered property damage equivalent to 20% of the sale price of the apartment in this case due to the above tort by the non-party company. The defendant asserts that the defendant is liable to compensate for the amount stated in the "property damage" column in the claim price list, which corresponds to 15% of the sale price of the plaintiffs out of the property damage suffered by the plaintiffs.

On the other hand, property damage caused by a fraudulent act refers to the difference between the property disadvantage caused by the illegal harmful act and the property disadvantage caused by the illegal act, i.e., the property damage caused by the illegal act, and the property damage caused by the illegal act of the non-party company, which the plaintiffs acquired the ownership or the ownership right of the apartment that has property value. In this case, since the plaintiffs acquired the ownership or ownership right of the apartment, the property damage caused by the non-party company's illegal act of deception is all the expenses incurred in acquiring the apartment, barring any other special circumstances, or the price difference between the apartment and the apartment in this case actually sold by the non-party company, not the price difference between the apartment with the non-party company's advertisement and the apartment in this case, which the plaintiffs paid (in case of the expenses paid over several occasions, the interim interest shall be deducted as of the comparison point for calculating the difference) and the market price of the apartment in this case (i.e., the market price of the ownership right or the purchase price claimed by the plaintiffs).

Furthermore, the difference between the sale price paid by the plaintiffs, i.e., the health stand, Gap evidence 23-1 through 9, and Eul evidence 46 concerning the amount of the purchase price of the apartment of this case, which is the basis for calculating the amount of damages suffered by the plaintiffs, can be acknowledged that there is a difference between the sale price of part of the apartment of this case approved for the announcement of invitation of invitation of invitation of invitation of invitation of invitation of invitation of invitation of invitation of invitation of invitation of invitation of invitation of invitation of invitation of residents from the day of the sale to October 3, 2003 and the price of the apartment of this case is somewhat higher than that of the sale in this case. The defendant is a person who promoted the discount of the sale of the apartment of this case from the point of October 201, because there is no difference between the apartment belonging to the same complex and the market price of the apartment of this case, so it can not be determined based on different appraisal price or appraisal price of the apartment of this case as the price of the apartment of this case can not be determined differently from the market price of this case.

(b) Mental damage

원고들은, 소외 회사가 이 사건 아파트에 대한 분양광고를 하면서 이 사건 아파트 단지 내에서 온천수가 용출되고, 이 사건 아파트의 거실바닥재를 ‘단풍나무 원목 바닥재’로 시공하며, 아파트 단지 내에 풍부한 유실수단지를 조성하고, 아파트 단지에 인접하여 서울대학교가 이전할 예정이며, 일산↔금촌을 연결하는 4차선 도로가 2001년까지 8차선 도로로 확장될 것이라는 허위 과장광고를 게재하여 원고들로 하여금 이 사건 아파트에 대한 분양계약을 체결하게 하였고, 이로 인해 원고들이 정신적 고통을 입었으므로, 피고는 원고들이 계약한 분양대금의 5%에 해당하는 별지 (2) 청구금액표의 ‘위자료’란 기재 금액을 위자료로 지급할 의무가 있다고 주장한다.

살피건대, 신규로 분양되는 아파트의 경우 그 아파트의 부대시설, 마감재, 교통환경 및 교육환경 등은 수분양자들이 분양계약을 체결함에 있어 중요한 요소가 된다고 할 것인데, 소외 회사는 앞에서 본 바와 같이 정부재출자기관으로서 공신력 있는 회사임을 강조하면서, 이 사건 아파트 단지 내에 온천이 존재하고 풍부한 유실수가 식재되어 있으며, 일부 평형의 아파트는 거실바닥이 단풍나무 원목으로 되어 있고, 일산↔금촌을 연결하는 4차선 도로가 2001년까지 8차선 도로로 확장되며, 서울대학교가 이 사건 아파트 주위로 이전될 예정이라는 내용의 허위 과장 광고를 하여 원고들을 기망하였고, 원고들은 소외 회사의 허위 과장 광고를 신뢰하여 이 사건 아파트의 분양계약을 체결하였다가 이 사건 아파트가 소외 회사의 광고내용과 같은 부대시설, 마감재, 교통환경 및 교육환경을 갖추지 못함을 알게 되어 정신적 고통을 받았음은 경험칙상 넉넉히 인정되므로, 소외 회사는 이를 금전적으로나마 위자할 의무가 있다.

나아가, 위자료의 수액에 관하여 보건대, 제1심 감정인 김준옥의 시가감정결과에 변론 전체의 취지를 종합하면, 소외 회사가 이 사건 아파트에 대한 분양광고를 게재하고 원고들과 사이에 이 사건 아파트에 대한 분양계약을 체결하기 시작한 1998. 2. 14.을 기준으로 하여, ① 이 사건 아파트에 소외 회사가 광고하였던 내용과 같은 온천이 존재하여 상시적으로 온천을 이용할 수 있었다면 온천을 이용할 수 없는 경우와 비교하여 별지 (3) 손해내역표의 ‘온천 부분’란 기재 금액 상당의 시가 차이가 존재할 수 있고, ② 이 사건 아파트 32평형, 43평형, 53평형 및 64평형의 경우 아파트 거실바닥재가 소외 회사의 광고와 같이 ‘단풍나무 원목 바닥재’로 시공되었더라면 ‘목재후로링(합판마루)’으로 시공된 것과 사이에 별지 (3) 손해내역표의 ‘바닥재 부분’란 기재 금액 상당의 시가 차이가 있으며, 그 밖에 유실수단지, 서울대학교의 아파트 인근으로의 이전, 일산↔금촌을 연결하는 도로의 확장이 있는 경우에도 시가 차이가 있을 것으로 보이나 이를 인정할 증거는 없다. 위와 같은 사실을 기초로 소외 회사와 같은 정부재출자기관으로 공신력이 있는 회사의 광고내용에 대하여는 일반인들이 더 높은 신뢰와 기대를 가지게 된다는 점, 원고들의 재산상 손해를 확정하기 어려워 기각하는 점, 피고로서도 소외 회사가 부실화되어 부도위기에 이르자 이 사건 아파트 및 그 부지에 대한 신탁사업을 양수하여 사업을 계속 진행함으로써 원고들로 하여금 이 사건 아파트에 입주할 수 있도록 하였으며, 원고들이 이 사건 아파트에 입주한 이후 아파트 상가의 스포츠센터, 사우나시설 및 셔틀버스 5대를 입주자대표회의에 무상으로 인계하여 주었을 뿐 아니라, 콘도회원권 30구좌를 구입하고 상당수의 유실수를 식재하는 등 소외 회사가 원고들에게 광고한 내용을 이행하기 위해 노력하였고, 그 밖에도 주차장 시설의 개선 등 원고들의 손해를 회복시키려고 한 사정이 엿보이는 점, 기타 이 사건 아파트의 분양계약 체결 이후 원고들의 관계기관에 대한 민원제기, 집회 및 시위과정, 손해의 회피가능성 및 손해 감소를 위한 피고측의 노력 정도 등 이 사건 변론에 나타난 제반 모든 사정을 참작하면, 피고가 원고들에게 배상하여야 하는 위자료는 별지 (3) 손해내역표의 ‘온천 부분’란 및 ‘바닥재 부분’란 기재 금액의 1/2에다가 아파트 1동당 500,000원을 가산한 금액으로 정함이 상당하고, 그 수액은 별지 (3) 손해내역표의 ‘인용금액’란 기재와 같다.

3. Conclusion

Therefore, the defendant is obligated to pay to the plaintiffs the amount stated in attached Form 3 (Attachment 3) "amount of damages" as well as damages for delay in accordance with the ratio of 5% per annum under the Civil Act from May 26, 2001 to December 7, 2004, which is the date of this decision, and 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. Thus, the plaintiffs' claims in this case are justified within the scope of each above recognition, and the remaining claims are dismissed as they are without merit. Since the court of first instance's decision is unfair as it is in part of the conclusion, the defendant's appeal as to damages for property, part of the defendant's appeal as to compensation for mental damage, and part of the defendant's appeal as to damages for delay in mental damage, and each part of the plaintiff's appeal as to damages for delay in the court of first instance to the court of first instance as to the plaintiff's appeal Nos. 1 through 639 of each judgment.

[Attachment]

Judges Park Jong-dae (Presiding Judge)

Judges Jeon Soo-ju Maternity Leave unable to sign