(영문) 서울고등법원 2013.9.4.선고 2012나67445 판결

2. Of the judgment of the court of first instance, the part concerning the conjunctive claim is revoked, and the plaintiffs' preliminary claim against the defendants is dismissed in entirety.

3. The costs of the lawsuit are assessed against the Plaintiffs.

Purport of claim and appeal

1. Purport of claim

A. The primary purport of the claim

The defendants jointly and severally pay to the plaintiffs 5% interest per annum from each corresponding point of time to each corresponding point of time, and 20% interest per annum from the next day to the day of full payment.

B. Preliminary purport of claim

Defendant G Co., Ltd. (hereinafter referred to as “Defendant G”) shall pay each of the above amounts with regard to each of the above amounts and each of the above amounts listed in attached Table 1 List 4, and Defendant H Co., Ltd. (hereinafter referred to as “Defendant H”) shall serve each of the corresponding amounts and each of the above amounts listed in attached Table 1 List 3 with regard to each of the corresponding amounts listed in attached Table 1 List 2.5% per annum and 20% per annum from the next day to the date of full payment.

2. Purport of appeal

A. Purport of the plaintiffs' appeal

The part concerning the primary claim is revoked in the judgment of the court of first instance. The defendants jointly and severally pay to the plaintiffs the amount stated in the primary claim of paragraph (1) A above.

B. Purport of the Defendants’ appeal

The part of the judgment of the court of first instance concerning the conjunctive claim is revoked, and all of the conjunctive claims against the Defendants are dismissed.

Reasons

1. Basic facts

A. Status of the parties

1) The plaintiffs are members of the Korea Housing Association (hereinafter referred to as the "Korea Housing Association") in order to purchase an apartment of the "J" regional housing association (hereinafter referred to as the " apartment of this case") that will be newly built on the land of Seongbuk-gu Seoul Metropolitan Government I.

2) Defendant H is a company that entered into an association agency service contract with the instant provisional name association. Defendant G is a company that is scheduled to enter into a business agreement with Defendant H as set forth in the following sub-paragraph (d) and will be a company that will be newly built for the future.

B. Joining the instant association and concluding the partnership agency contract

The Plaintiffs, on the date of each of the pertinent contracts listed in attached Table 1 List 1, join the instant provisional association between the instant provisional association and Defendant H and paid a cooperative member’s contribution, etc. to purchase the instant apartment complex (34 square meters), but entered into each of the agreements to join the instant association and to enter into an agency contract for the association (hereinafter “each of the contracts of this case”) with Defendant H to have Defendant H act on behalf of him, and the main contents of the agreement are as listed in attached Table 2.

After entering into each of the instant agreements, the Plaintiffs deposited each of the pertinent business promotion expenses listed in attached Table 1 List (3) into the account in Defendant H’s name on each of the relevant days set forth in attached Table 1 List (4), and each of the relevant members’ contributions listed in the same list (5) in several times by each of the relevant days set forth in attached Table 1 List (4)

D. Progress and current status of the new apartment construction project in this case

1) The construction project of the instant apartment was originally conducted by Nonparty L and M, etc., along with each of the instant land owners of K and NJ, by establishing and integrating the instant tentative name association to promote the new construction project separately from each of the instant land owners, and then Defendant H was newly designated as an executing agent.

2) Accordingly, on August 25, 2008, Defendant H entered into a business agreement with Defendant G to select Defendant G as a contractor when the instant provisional name association was authorized to establish the said association (hereinafter referred to as “instant business agreement”). On the other hand, Defendant H tried to invite more than 1/2 of the number of members (at least 80/10 of the number of households scheduled for housing construction) required for authorization to establish the instant provisional name association, and to secure land usage rights (at least 80/10 of the number of land owners scheduled for housing construction site). However, the instant provisional name association failed to meet such requirements until the closing date of the pleadings, and thus it did not obtain authorization to establish the said association.

3) The contents of the instant apartment construction project were as follows: (a) originally planned to newly build and sell 34 square-type (265 households) and 25 square-type (29 households) apartment-294 households; (b) however, the instant provisional-name association changed its business contents to sell 34 square-type (146 households), 25 square-type (59 households), and 17 square-type (176 households) apartment-381 households on the ground of difficulty in securing the project site; and (c) up to now, the mutual-aid association entered into a mutual-aid agreement with respect to 242 households.

【Non-contentious facts, Gap’s evidence 8 through 13, Eul’s evidence 3, 7, and 9 (including the number of each party), the purport of the whole pleadings

2. Judgment as to the main claim

A. The plaintiffs' assertion

At the time of conclusion of each contract of this case, the Defendants are scheduled to secure the right to use 80% of the project site subject to the regional housing association and apply for the authorization to establish the association on October 2009. The Defendants advertised that it was scheduled to move into around May 2010, and that it was scheduled to move into the association on February 2012. However, the scheduled occupancy date was much more than the scheduled occupancy date, and the contract of this case was scheduled to move into the association until the closing date of argument of this case. ② The agreement of this case was opened in 2013 (or 2014) from the surrounding apartment to the 5 minutes from the apartment of this case to the Do, and the agreement was concluded between the Plaintiffs and the 10 minutes from the apartment of this case to the Do, and each of the Defendants’ association was jointly and severally liable for damages to the 7 minutes from the apartment of this case to the Do, and the agreement was concluded by the Do association members of this case to the 12 meters wide range.

B. Determination

1) Whether fraud or false or exaggerated advertisement is false or exaggerated

A) As to securing land use right and schedule of project progress

According to each statement of evidence Nos. 3, 4, and 15, "K Housing Association business plan prepared by Defendant H and "K Housing Association sales consultation data prepared by Defendant H," respectively, "scheduled to apply for authorization for establishment of a housing association around October 2009, and expected to move into June 2012". In particular, "the status of securing 80% right of use, which is the requirement for authorization and permission," is added to the phrase, and "the status of securing 80% right of use, which is the requirement for authorization and permission" in the former is the fact that the Hague News Team reported "the commencement of May 200 and expected to move into the zone in August 201 after obtaining authorization for establishment of the new apartment building in October 209", and the fact that the provisional name of this case did not meet the requirements for the right of use of land, etc. yet, as mentioned above.

However, as seen next, the subject of the new apartment construction project in this case is the name of the association in this case, and the Defendants are in the position of executing agency or scheduled contractor, so they are not parties to the performance of their obligations to supply apartment buildings to the Plaintiffs by meeting the project requirements, such as securing the right to use land, and each of the above data is merely an internal document created by Defendant H’s education for its employees, and the report of the said new apartment news team is merely a single publicity for the general public, and it is insufficient to recognize that the Defendants actively enticed or advertised the Plaintiffs as such contents at the time of each contract in this case, and there is no other evidence to support this otherwise.

B) Concerning traffic conditions

In full view of the statements Nos. 1, 15, 18-4, 23 of the evidence No. 18-4, the results of the first instance court’s on-site inspection of the Seoul Special Metropolitan City Urban Infrastructure Headquarters, as a result of the fact-finding on the Seoul Special Metropolitan City Office of Infrastructure of the first instance, the entire purport of the pleadings is as follows: (a) Defendant H’s Internet homepage of the apartment of this case is about 10 minutes at the same time as the three-minutes of light metal / subway mallebing zone Do Do Do Do Do Do Do Do Do Do; (b) it is convenient to enter the city using Northern Pung-ro Do Do Do Do Do Do Do Do. / the internal circulation of the apartment of this case; (c) at least 10 minutes at the time of the completion of the construction of the new construction of the new construction of the new construction of the new construction of the new construction of the new construction of the new construction of the new construction of the new construction of the new construction of the new construction of the new construction of the new construction.

However, as seen earlier, the Defendants are not project undertakers of the instant apartment construction project, and thus, do not have the right to perform the duty to secure the traffic sites as above under the contract with the Plaintiffs, and the above counseling materials are merely internal materials for employee training, and according to the result of a fact-finding on the Seoul Special Metropolitan City Urban Infrastructure Headquarters in the first instance court, according to the fact-finding on part of the Seoul Special Metropolitan City Urban Infrastructure Headquarters in the Seoul Special Metropolitan City, the Defendants falsely and exaggeratedly advertised important facts in the instant transaction to the extent that they would be subject to criticism in light of the duty of good faith, and there is no other evidence to acknowledge this.

2) Whether the Housing Act has been violated

Article 97 subparagraph 7 of the Housing Act provides a penal provision that "a person who is not a member of a housing association (excluding a remodelling housing association) established pursuant to Article 32 of the Housing Act, who receives fees other than the housing price, or receives money or goods under any other pretext, in arranging the joining of a housing association, shall be punished by imprisonment or a fine." Thus, the issue of whether the business promotion expenses received from the plaintiffs in entering into each of the contracts of this case constitutes "the receipt of money or goods in return for mediating the joining of the association members" as provided in the above provision can be

As examined below, each of the contracts of this case mainly aims at joining the association through Defendant H, an agent of the name cooperative of this case. Thus, the plaintiffs who become members of the association of this case, as a matter of principle, are obligated to share contributions or expenses incurred in the activities and operation of the association in accordance with the union rules, etc. Meanwhile, the association of this case is obligated to pay the remuneration for the handling of delegated affairs to Defendant H, one of its agent. However, according to the purport and contents of each of the contracts of this case, the association of this case is not yet equipped with an organization system with the number of its members at the time of entering into each of the contracts of this case. For the purpose of paying the above handling of entrusted affairs to Defendant H with business promotion expenses paid by its members through each of the contracts of this case, it is deemed that the association of this case reduced the process of payment so that members would directly pay the above business promotion expenses. Accordingly, since the business promotion expenses received by Defendant H from the plaintiffs through each of the contracts of this case constitute a violation of Article 7 of the Housing Act's Housing Act's performance of entrusted affairs.

3) Therefore, the above argument regarding the plaintiffs' primary claims on the grounds that the defendants committed any tort in entering into each of the contracts of this case with the plaintiffs is without merit.

3. Judgment on the conjunctive claim

A. The plaintiffs' assertion

Each of the contracts of this case was invalidated or cancelled for the following reasons, or cancelled for the defendants' default, and thus, the plaintiffs are obligated to fulfill their duty of restoration, the defendant G is obligated to pay the members' share of each of the contracts of this case, and the defendant H is obligated to pay the business promotion expenses of each of the contracts of this case.

1) In addition, each of the instant contracts constitutes a prohibited act under Article 97 subparag. 7 of the Housing Act, and thus null and void as a matter of course.

2) The Defendants, as alleged in the above main claim at the time of entering into each of the instant contracts, deceiving the Plaintiffs regarding the degree of acquisition of the instant apartment project site, schedule of carrying on the instant apartment project, conditions of location related to light iron and subway, etc., or concluded each of the instant contracts on the grounds that the Plaintiffs were erroneously involved in such important matters, and thus, each of the instant contracts was revoked upon the Plaintiffs’ declaration of intent of revocation.

3) Since the instant provisional name association was unable to secure the original project site, and it was virtually impossible to complete the construction of the instant apartment due to its failure to obtain authorization for the establishment, etc., each of the instant provisional names agreement was rescinded upon the declaration of intent to cancel the contract by the Plaintiffs on the grounds of the impossibility or significant change of the Defendants’ performance of the duty to sell in lots.

B. Determination

1) Nature of each contract of this case and confirmation of the parties

In order to determine the parties to the obligation to return contributions and business promotion expenses under each of the contracts of this case, it is necessary to determine the nature of each of the contracts of this case and the parties. Since the plaintiffs denied the substance of the association of this case as stated in each of the contracts of this case and asserted that they are only the defendants, they first consider the legal nature of the association of this case.

In general, where owners of land intend to construct housing as a project implementer for new apartment construction under the Housing Act, in the beginning stage of the project, a small number of landowners prepared the project by creating an association establishment promotion committee corresponding to an association of promoters or a combination similar thereto, and then establishing a project plan, the association's rules, decision-making institution, and executive organ, etc. gradually, if they are incorporated into an association, it is not a legal entity, or an association with the nature of a non-legal entity equivalent thereto, and furthermore, if the association is authorized to establish an association upon meeting the requirements prescribed in the Housing Act, it is formed into an association with the completed legal entity. In the case of the provisional association, the aforementioned facts and evidence, Eul, Eul, Eul, and Eul's 11,12, and Eul's 1 through 9 (including the number of branches where each of them is available). The first association is to manage the new business establishment of each of the following associations with the chairman of each of the following associations, and it is not only the association's association's association's entity or association's entity.

Furthermore, comprehensively taking into account the nature of each contract of this case as to the parties concerned, the contents of each contract of this case and the purport of evidence Nos. 8 through 13, and 23 as to each of the above facts, each contract of this case is defined as "A," as "B," and as a whole, as to the members of the association (the plaintiffs of this case), as "B," and as to the rights and obligations of the association, as a whole, under the premise that the association of this case did not obtain authorization for the establishment of the association of this case, "A," and "A, as to the establishment of the association of this case's provisional rights and obligations among the members of the association of this case, as to the establishment of the association of this case, the association of this case's provisional rights and obligations are defined as "the representative nature of the association of the association of this case" and "the rights and obligations of the plaintiffs as to the establishment of the association of this case are assigned to the association of this case to the association of this case, and the association of this case is defined as "the business promotion expenses and obligations of the association of this case."

2) Determination as to the claim against Defendant G

Therefore, each of the above arguments regarding the plaintiffs' preliminary claims against the defendant G on the premise that the defendant G is a party to each of the contracts of this case with respect to the acceptance of the shares of each of the parties to each of the contracts of this case are without merit.

Furthermore, Defendant G also asserts that the actual joint project proprietor of the instant apartment construction project is responsible for the association members’ contributions. As such, when a regional housing association enters into a contract for the recruitment, public relations, and management of the association members at the stage prior to obtaining authorization for establishment, authorization for establishment of a cooperative, purchase of a project site, and management of payment to the association members, etc., the authority and responsibility of the regional housing association shall be the authority and responsibility of the local housing association. In a case where the Si corporation, after authorization for establishment, has decided to support and cooperate with the local housing association in order to supplement the lack of expertise and financial ability of the regional housing association, the regional housing association and the Si corporation shall not be the joint project proprietor under the Housing Act as well as the joint project proprietor under the Civil Act. Therefore, the aforementioned assertion by the Plaintiffs is without merit

3) Determination as to the claim against Defendant H

As seen earlier, the business promotion expenses of this case are reverted to Defendant H, and in relation thereto, not only the instant virtual association but also the Defendant H is the party to the contract with the Plaintiffs.

However, at the time of concluding each contract on this part, there was no entity of the instant provisional term union. or each contract cannot be deemed as a prohibited act under Article 97 Item 7 of the Housing Act, and it cannot be deemed that there was a deception against Defendant H as alleged by the Plaintiffs. In addition, even if there was an error in motive as alleged by the Plaintiffs, in order to cancel a juristic act on this ground, it should be recognized that the motive was expressed to the other party as the content of the relevant expression of intent, and that it was an important content of the juristic act in the interpretation of the expression of intent. There is no evidence to acknowledge this point.

In addition, it is true that the association of this case has failed to obtain authorization for the establishment of a new apartment complex yet to support the progress of the project, such as the reduction of a considerable portion of the project site than originally anticipated. However, the association of this case still continues to implement the new apartment construction project of this case, focusing on the promotion committee, such as entering into an agreement to enter into the association with respect to 242 households among the 381 households of this case through Defendant H through Defendant H. In particular, its business contents include 146 households or 146 households, and it is not deemed impossible to perform the duty to supply apartment units to the plaintiffs. In light of the above, it cannot be said that the association of this case against the plaintiffs was unable to perform the duty to supply the apartment units of this case, or that there was a significant change in circumstances that could cancel each contract of this case. Even if all of the above arguments by the plaintiffs are acknowledged, according to the provisions of Articles 7 and 8 of each of the contracts of this case, the plaintiffs can not claim the return of the conjunctive business operating expenses of this case to Defendant H in principle.

4. Conclusion

Therefore, all of the plaintiffs' primary and conjunctive claims against the defendants are without merit. Since the part concerning the conjunctive claims in the judgment of the court of first instance is unfair with different conclusions, it shall be revoked by accepting the defendants' appeal, and all of the conjunctive claims against the defendants corresponding to the revoked part shall be dismissed. Since the appeal against the defendants against the defendants is without merit, it shall be dismissed in its entirety. It is so decided as per Disposition.