2016 Ghana 121954 Undue gains

A

B

July 14, 2017

August 25, 2017

1. The defendant shall pay to the plaintiff 50 million won with 5% interest per annum from April 30, 2010 to August 24, 2017, and 15% interest per annum from the next day to the day of full payment.

2. The plaintiff's remaining claims are dismissed.

3. 1/10 of the costs of lawsuit shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

4. Paragraph 1 can be provisionally executed.

The defendant shall pay to the plaintiff 5 million won with 5% interest per annum from April 30, 2010 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.

1. Facts of recognition;

A. The C Housing Association (hereinafter referred to as the “C Housing Association”) obtained the authorization for the establishment of the Housing Association from the head of Dongjak-gu Seoul Metropolitan Government head of the Housing District Office on March 28, 1996 in order to construct apartments with three and D lots of land outside Dongjak-gu Seoul Metropolitan Government as its business area.

B. The defendant, around December 2009, held the right to purchase an apartment under the name of the plaintiff as a member of the non-party association in the name of the defendant in the loss of the plaintiff's operation, and said that he would sell the apartment because he could purchase the apartment after the completion of the business within three years.

C. Accordingly, the Plaintiff agreed with the Defendant to transfer the right to purchase an apartment unit to be newly built by the non-party partnership (hereinafter “instant agreement”) by transfer from the Defendant, and paid KRW 51 million in total to the Defendant from December 28, 2009 to April 30, 2010.

D. On July 2010, the Plaintiff demanded the Defendant to change the name of the non-party partnership member in the name of Chok E, not the Plaintiff. Accordingly, the Defendant received from the Defendant the receipt of an application form for membership of the partnership (hereinafter referred to as “the receipt of this case”) stating the change of the name of the association member from the non-party partnership, and ordered the Plaintiff to do so.

E. On November 13, 2012, the non-party association applied for the approval of a project plan within two years from the date of authorization under the Housing Act and subordinate statutes, but the authorization was revoked, and the plaintiff or E did not have been registered as a member on the list of members of the non-party association.

[Ground of recognition] Facts without dispute, entry of Gap evidence 1 to 6, purport of the whole pleadings

2. Determination on the cause of the claim

A. According to the above facts of recognition, the obligation of the Defendant to transfer the Plaintiff’s membership to the Plaintiff shall be deemed to have reached an impossible condition in which the Plaintiff could not expect the realization of the performance, and the instant agreement was rescinded upon delivery of a duplicate of the complaint containing the Plaintiff’s declaration of termination of the contract on the ground of nonperformance to the Defendant. Thus, barring any special circumstance, the Defendant is obligated to pay the Plaintiff the purchase price of the instant agreement amounting to KRW 51 million and damages for delay in payment (the Plaintiff asserted that the Plaintiff paid KRW 55 million to the Defendant with the purchase price, but it is not sufficient to recognize that the Plaintiff paid money exceeding the above KRW 51 million to the Defendant on the sole basis of the statement of evidence No. 7, and there is no other evidence to recognize otherwise).

B. Defendant’s assertion and judgment

1) Summary of the assertion

Around July 2010, the Defendant issued the instant receipt to the Plaintiff. On September 12, 2016, E obtained recognition of partnership members as partnership members and completed the registration of ownership transfer of partnership property in the capacity of partnership committee, and thus, the Defendant’s contractual obligation was fulfilled. In addition, even if the instant agreement was rescinded, since the Plaintiff paid KRW 20 million out of the purchase price to Nonparty Union, the Defendant did not have any obligation to return it to the Plaintiff.

2. Determination

(A) Determination as to the defendant's assertion of performance of contractual obligation

According to the evidence Nos. 2 and 3, E, designated by the Plaintiff, appears to have acquired the status of a partner inside the non-party partnership.

However, as seen earlier, the Plaintiff or E does not have any entry on the list of members of the non-party union; at the time of the instant agreement or the instant receipt floor, the non-party union was unable to file an application for the change of the status of members under the Enforcement Decree of the Housing Act (see the Enforcement Decree of the former Housing Act) at the time of the issuance of the instant receipt floor, and the non-party union was unable to file an application for the change of the number of members for replacement of the association committee or additional recruitment; the circumstances such as Gap evidence 2, Eul's statement in the fourth floor and the overall purport of oral argument, i.e., the change of the name of members under the articles of association of the non-party union (see the attached articles of association) was strictly limited; and the non-party union appears to have failed to file an application for the change of the above approval until the revocation of the authorization for establishment; in addition, it is difficult to view that the mere fact that the status of members of the non-party

(B) Determination as to the assertion of refund of union membership fees

In light of the records in Gap evidence No. 5, the fact that the defendant paid to the non-party association was in arrears with the application amount for joining the association designated by the plaintiff is recognized. However, the other party to the agreement of this case is the defendant, and even though the defendant, as the party to the agreement of this case, handled the application amount for joining the association in relation to the non-party association in order to perform his/her duty as the party to the agreement of this case, as long as the agreement of this case was terminated, the defendant liable for the duty of restoration shall return the full amount of the purchase amount received from the plaintiff to the plaintiff

C. Sub-decision

Therefore, the defendant is obligated to pay damages for delay calculated by the ratio of 5% per annum prescribed by the Civil Act from April 30, 2010 to August 25, 2017, which is the date of the judgment that is appropriate for the defendant to dispute about the degree or scope of the obligation to pay to the plaintiff from April 30, 2010 to the date of payment of the last price of the window as requested by the plaintiff, and 15% per annum as stipulated by the Act on Special Cases Concerning the Promotion of Legal Proceedings from the next day to the date of full payment.

3. Conclusion

Therefore, the plaintiff's claim of this case is justified within the scope of the above recognition, and the remaining claim is dismissed as it is without merit. It is so decided as per Disposition.

Judges Kim Jong-tae

[Application at the time of the instant agreement: (1) A regional housing association or workplace housing association is prohibited from replacing or newly joining the relevant association members after obtaining authorization for the establishment thereof, as prescribed by Ordinance of the Ministry of Land, Infrastructure and Transport from the head of a Si/Gun/Gu within the scope not exceeding the expected number of housing construction units, and a vacancy falling under any of the following subparagraphs occurs.

1. Death of an association member;

2. Where the status (referring to the right, status, etc. to move into the relevant house) selected as an occupant after approval of a project plan under Article 16 of the Act (where a regional housing association or workplace housing association has obtained approval of a project plan under Article 16 of the Act without securing the ownership of all of the relevant housing construction site pursuant to subparagraph 2 of Article 12, referring to after securing the ownership of all the relevant housing construction site (where the relevant housing construction site is the object of mortgage, etc., including cancellation of mortgage, etc.) has been changed by transfer, donation, judgment, etc.: Provided, That cases where resale is prohibited pursuant to

3. Where the number of members becomes less than 1/2 of the number of households scheduled for housing construction due to the withdrawal, etc. of members.

4. Where a member is disqualified because he/she is found disqualified;

5. Where the number of union members becomes less than 1/2 of the changed number of union members due to a change in the number of scheduled households for housing construction in the course of implementing a project plan under Article 16

(2) The decision on whether a person who is recruited additionally as a member under the proviso to paragraph (1) or a person who is recruited for a reason under any subparagraph of the same paragraph satisfies the requirements for membership under Article 38 (1) 1 and 2 shall be based on the date of application for authorization for establishment of the housing association concerned: Provided, That a person who succeeds to the status of a member for a reason under paragraph (1) 1 shall not require the requirements for qualification for a committee under Article 38 (

(3) The approval of additional recruitment of union members and the application for authorization of change to the housing association following additional recruitment of union members under the proviso to paragraph (1) shall be made by the date of application for approval of the project plan.

Article 8 (Replacement, New Joining, etc. of Members) (1) No association shall replace or newly admit any member after obtaining authorization for establishment: Provided, That the same shall not apply where the number of members does not exceed the number of scheduled housing construction households under a project plan and where approval for additional recruitment of members is obtained from the head of the Gu as prescribed by the Ordinance of the Ministry of Construction and Transportation and a vacancy is filled within the limit of the number of members falling under any of the following subparagraphs:

1. Death of an association member;

2. Where a member emigrates to overseas or resides overseas for not less than two years;

3. Where a member is disqualified by owning other housing due to final and conclusive judgments, etc.;

4. Where a member is disqualified due to an electronic inquiry, etc. which became disqualified;

(2) Where a housing association is inevitably transferred to an area out of Seoul Special Metropolitan City due to a workplace or occupation after the authorization for establishment of the housing association is granted, the qualification of its members shall continue to be maintained until the relocation to Seoul Special Metropolitan City