2013Guhap59231 Liquidation Money

A

B Village Reconstruction Project Association

June 19, 2014

July 24, 2014

1. The defendant shall pay to the plaintiff 1,268,626,605 won with 5% interest per annum from April 29, 2014 to July 24, 2014, and 20% interest per annum from the following day to the day of full payment.

2. The plaintiff's remaining claims are dismissed.

3. Of the litigation costs, 10% is assessed against the Plaintiff, and the remainder is assessed against the Defendant, respectively.

4. Paragraph 1 can be provisionally executed.

With respect to the Plaintiff KRW 1,276,169,368 and KRW 1,270,323,40 among them, the Defendant shall pay to the Plaintiff 20% interest per annum from April 12, 2014, KRW 5,845,968 from the following day of the ruling of this case until the day of full payment.

1. Basic facts

A. The defendant is a housing reconstruction project association established with the approval of establishment from the head of Gangseo-gu Seoul Metropolitan Government on August 1, 2007 to implement a housing reconstruction project (hereinafter "the housing reconstruction project of this case") within 31,668 square meters in Gangseo-gu Seoul Metropolitan Government.

B. The Defendant received the authorization from the head of Gangseo-gu Seoul Metropolitan Government for the project implementation of the instant project on October 26, 2007, and obtained the authorization for the management and disposal plan on January 23, 2008. The Plaintiff is the owner of the land and the building indicated in the attached list of real estate located within the instant project zone (the above building was destroyed on October 2, 2008; hereinafter referred to as the “instant land”).

D. The Defendant designated 30 days from November 1, 2012 to November 30, 2012 as the period for application for parcelling-out, but extended 20 days to December 20, 2012, designated an additional period as the period for application for parcelling-out, and concluded a contract for parcelling-out during the said period.

E. The plaintiff did not apply for parcelling-out during the period of the above application for parcelling-out.

[Reasons for Recognition] Facts without dispute, Gap evidence 1, Gap evidence 2, Gap evidence 3-1, 2, Gap evidence 4-7, the purport of the whole pleadings

2. Judgment on the plaintiff's assertion

A. The plaintiff's assertion

1) Claim for the payment of cash settlement money

The plaintiff did not file an application for parcelling-out within the period for application for parcelling-out as determined by the defendant. Therefore, the plaintiff acquired the status of a person subject to cash settlement.

2) Claim for return of unjust enrichment equivalent to the interest on relocation expenses

The Plaintiff received a loan of KRW 331,60,00 from the National Bank of Korea (hereinafter “National Bank”) on March 14, 2008 on the interest on the loan from the National Bank of Korea (hereinafter “National Bank”). However, even if the Plaintiff lost its membership, the interest on the loan shall be borne by the Defendant. The Plaintiff paid KRW 76,768 as the loan interest from March 20, 2014 to April 10, 2014 on behalf of the Defendant, from the National Bank of Korea (hereinafter “National Bank”). Accordingly, the Defendant is liable to pay the Plaintiff the unjust enrichment of KRW 766,768, and delay damages therefrom.

3) Claim for restitution of unjust enrichment equivalent to property tax on the instant land paid by the Plaintiff

On November 2, 2007, the Plaintiff completed the registration of transfer of ownership on the ground of trust with respect to the instant land and building, and thus, the Defendant is obligated to pay the property tax imposed on the instant land and building on behalf of the Defendant. However, the Plaintiff paid KRW 2,440,220, and KRW 2,638,980 on September 2, 2013 on behalf of the Defendant. Accordingly, the Defendant is obligated to pay the Plaintiff unjust enrichment equivalent to the property tax, KRW 5,079,200, and delay damages therefrom.

B. Facts of recognition

1) The Plaintiff completed the registration of transfer of ownership on the instant land and building to the Defendant on November 2, 2007, the Seoul Southern District Court Gangseo-gu Office of Seoul Southern District Court, No. 70377, Oct. 29, 2007, which was based on the trust of October 29, 2007.

2) Meanwhile, the Plaintiff leased the instant real estate, but on March 30, 2008, the lessee completed the relocation. 3) Articles of incorporation of the Defendant

The main contents of the defendant's articles of incorporation related to the settlement of cash and the bearing of maintenance project costs shall be as follows:

Article 7 (Methods of Notice and Public Notice of Matters concerning Rights and Obligations) (1) Cooperative shall faithfully notify and publicly announce the matters concerning the rights and obligations of cooperative members to cooperative members.Article 10 (Right of Cooperative Members) (1) Cooperative members shall have the following rights and obligations: 2. Right to request the attendance of general meeting; 3. Right to elect representatives and right to elect representatives; 4. Right to elect representatives; 5. Right to elect representatives; 6. Right to pay the cost of improvement project, liquidation, dues and late payment and delayed loss (including delay due to interest, delay of contract; 7. Other related Acts and subordinate statutes; 11 (Loss of Union Members' Qualifications) (1) Cooperative members shall immediately lose their qualifications when a cooperative member transfers the ownership of a building or status of being selected as residents; 34. (4) Right to request the sale of the land or building; 3. Right to elect representatives and right to select representatives; 4. Right to select representatives; 6. The obligation to remove and move from a project implementation plan; 7. The obligation to remove and move from a general meeting (1).

(3) The Cooperative may impose on any partner who fails to pay the rearrangement project expenses by the due date for the payment of the arrears within the scope of the interest on arrears applied by the financial institution, and entrust the head of the competent Si/Gun with the collection of the rearrangement project expenses pursuant to Article 61 (4) of the Act. (2) The Cooperative may arrange the partner who wishes to provide the relocation expenses by concluding an agreement with the financial institution directly with the constructor or signing an agreement with the constructor. In this case, the member who is provided the relocation expenses shall provide the land and buildings owned within the project implementation district as security. (3) The member who has received the relocation expenses under paragraph (2) or who has succeeded to such rights shall refund the subsidized relocation expenses to the constructor (or the financial institution) until such time as the moving expenses are moved into the house, etc. (2) (4) the period for application for parcelling-out under subparagraph 4 of Article 43 shall be 30 days to the date of notification, and the Cooperative may extend the period for application for parcelling-out from the date of installment sale to the head of the previous building or disposal plan:

The price of a building site or building sold in lots shall be calculated by calculating the arithmetic mean of the values appraised by at least two appraisal business entities recommended by the head of a Si/Gun.(3) In the appraisal of the price of a building site or building sold in lots under paragraph (2), subsidies under Article 63 of the Act shall be deducted: Provided, That where there is a partner who fails to pay liquidation money in connection with the implementation of a rearrangement project, a cooperative shall notify him/her of the payment of liquidation money at least twice and entrust the head of a Si/Gun with the payment of the liquidation money within one month from the final date of the request.

4) On October 28, 2007, the defendant entered into a contract for construction with Hyundai Construction Co., Ltd. (hereinafter referred to as "the construction contract in this case") (hereinafter referred to as "the construction contract in this case"), and the main contents are as follows.

B Contract for the construction project for village reconstruction; contract amount: 84,629,181,283 Won Contract Terms, Article 4 (Method of Implementation of Projects) 1 of the Contract Terms, and the defendant's business expenses shall be lent by the Corporation to the defendant and the defendant's members.

In this case, the defendant and the defendant's association members shall repay the principal and interest pursuant to the provisions of Articles 39 and 40: Provided, That the moving expenses and business expenses may be raised directly through financial institutions after consultation with the defendant and the trial: Article 7 (Amount of Contract for Construction Work) ① The contract amount to be paid by the defendant to the trial corporation shall be as follows: Article 16 (Lease of Relocation Expenses) (1) The trial corporation shall take measures to allow the association members to loan the amount of the defendant's previous buildings (including sites) to the financial institution within the limit of 48.4 billion won in total from the lending financial institution under the name of the defendant's association member to the standard amount of the moving expenses, and additional lending shall be made after consultation with the defendant, if necessary: Provided, That the interest on the moving expenses shall be paid every month by the constructor to the financial institution on behalf of the defendant and the interest on moving expenses shall be deposited in the account of the loan of the defendant from the lending date to the financial institution, and the amount of the loan and late payment charge shall be paid to the financial institution.

Before paying relocation expenses, the defendant shall request payment after checking the ownership relationship of the building of the member, the relocation of the tenant, etc.

5) Meanwhile, around November 2013, the Defendant entered into a contract to partially modify the instant construction contract with a contractor (hereinafter “instant modified contract”). The main contents are as follows.

Article 17 (Lease of Relocation Expenses, etc.) (1) The defendant shall make a direct financing from the financial institution without guarantee of the construction work from the financial institution selected in consultation with the contractor within the limit specified in the special conditions of the contract for construction work in accordance with the details of existing property rights. (2) The interest on the basic relocation expenses under paragraph (1) shall be paid by the defendant not later than the first day of the expiration date of the designation period of the occupancy of the defendant partner or the date of actual occupancy, and the interest on the additional relocation expenses shall be deposited by the defendant into the account of the lending from the relevant lending point to the financial institution designated each month from the relevant lending point,

6) On March 14, 2008, the Plaintiff borrowed KRW 331,60,000 from the National Bank as moving expenses. Under the instant construction contract, the monthly interest rate of KRW 985,715 on the said loan was paid by the City Corporation to the National Bank of Korea. The total amount of interest on the said loan borne by the City Corporation for 64 months from March 14, 2008 to July 14, 2013 is KRW 63,085,760.

7) Meanwhile, according to the instant construction contract, the Defendant assumed the obligation to return the amount equivalent to the interest on moving expense loans to the contractor in the form including the amount of the construction contract. On December 23, 2013, the Defendant received a request from the contractor for payment of KRW 16,023,905,538, including the interest on moving expense loans and the interest on business expense loans, from March 20, 2008 to December 26, 2013 (from November 2013, 2013) paid by the contractor on behalf of the Defendant, from March 20, 2008 to December 20, 2013.

8) The details of interest on the moving expenses paid by the contractor or the Defendant on behalf of the Plaintiff are as shown in the attached Table of Interest Details. The Defendant directly paid interest on the moving expenses loans from December 2013 after receiving the request from the contractor.

9) On February 22, 2008, the National Bank set the right to collateral security at KRW 398,00,000 with respect to the instant land and building with the claim for the said loan as the secured debt. On April 10, 2014, the Plaintiff repaid to the National Bank the secured debt of KRW 332,366,768 (the repaid principal + KRW 331,60,000 + the interest rate of KRW 76,768 from March 21, 2014 to April 10, 2014) and on April 111, 2014, the establishment registration of collateral security was cancelled.

10) The Plaintiff paid KRW 2,440,220 of the property tax imposed on the instant land on September 28, 2010, and paid KRW 2,638,980 of the property tax imposed on the said land on November 29, 2013.

11) Results of the commission of appraisal by the appraiser D (hereinafter referred to as "appraisal") of this Court

A) As of December 21, 2012, the appraiser assessed the entrustment of appraisal of the market price of the instant land and building as of December 21, 2012 as follows.

B) As to the instant land, Gangseo-gu Seoul EE land, which is similar to the specific use area, utilization status, surrounding environment, etc., was selected as a comparative standard site, and the gap was calculated by comparing and analyzing the regional, individual, and other factors between the instant land and the standard site. Furthermore, the appraiser adopted the land near the instant land, which is similar to the specific use area and use status, as a compensation example, and assessed the compensation price of each instant land in consideration of the normal market price level, equity between the neighboring compensation preference price, and regional price balance. The results of calculating the regional, individual, and other factors as to the instant land, and the compensation amount therefrom are as follows.

As a result of the appraisal of the land of this case;

A person shall be appointed.

Individual factors.

A person shall be appointed.

C) On December 21, 2012, an appraisal of the compensation price was made by applying the cost method computed as at the time of the pricing of the instant building by reducing the cost of the building, which was incurred in re-purchasing the building being valued as of December 21, 2012. However, since the said building had already been destroyed at the time of assessing the instant building, an appraiser assessed the compensation price on the basis of the standard for the previous appraisal report for the formulation of the management and disposal plan (based on October 26, 2007), the surrounding inquiry, the purpose and surrounding environment, the appraisal example, and various public books. Accordingly, the assessed value of the instant building calculated therefrom is 85,343,400 won.

[Ground of recognition] A without dispute, Gap evidence Nos. 1, Gap evidence Nos. 7 through 12, Eul evidence Nos. 1 through 7, Eul evidence Nos. 14, Eul evidence Nos. 15, Eul evidence Nos. 15, the result of the court's entrustment of appraisal to appraiser D, and the purport of the whole pleadings

C. Determination

1) Determination as to a claim for cash settlement money

A) Whether the Plaintiff is subject to cash settlement

The fact that the plaintiff has not filed an application for parcelling-out during the period of application for parcelling-out shall not be disputed.

Therefore, the defendant is obliged to pay the liquidation money for the real estate of this case to the plaintiff who has lost the status of the union member because he did not apply for

B) Amount of liquidation balance

(1) As a result of the court’s appraisal for an adequate assessment of the price of the instant land and buildings, the assessed value of the instant land is KRW 1,184,980,00, and the assessed value of the instant building is KRW 85,343,400, as seen earlier.

(2) Judgment on the defendant's assertion

(A) Summary of the assertion

Although the land of Gangseo-gu Seoul Metropolitan Government, which is the comparative standard place of appraisal selected by the appraiser, is the so-called Sejong (Ga), the road conditions are superior to the land of this case, it is illegal to regard the comparative standard place of appraisal as the vertical length, and to regard it as the same as the land of this case as the road conditions (hereinafter referred to as the "section 1").

An appraiser selected the Gangseo-gu Seoul Metropolitan Government F land as a example of appraisal and calculated the value of other factors by 1.27%. However, not only did it consider the situation that the proportional rate according to the management and disposal plan was set at 81.97% due to the aggravation of construction games and the delay of reconstruction projects, but also did not reflect the recent transaction cases in which the sales price was set at a price equivalent to 2.6 million won per square meter (hereinafter referred to as “section 2”).

As a result of the evaluation of the previous assets on the land and buildings of this case, the appraised value of the land and buildings of this case is KRW 1,196,449,050. This is a significant difference between the appraisal result and the appraisal result of an appraiser, and thus, it is difficult to believe the above appraisal result (hereinafter referred to as the "

(B) Determination

(1) Judgment on the first proposal

According to the result of the fact-finding conducted by the appraiser of this court, the appraiser referred to the Scarto interview as of 2008, was presumed to fall under the standard price for officially announced by the Ministry of Land, Infrastructure and Transport and as of 2012 publicly announced by the Ministry of Land, Infrastructure and Transport, and was presumed to fall under the standard price for officially announced land in 2012. In the previous appraisal and assessment, it can be acknowledged that the standard price for comparison was presumed to be the vertical duty (Ga). In light of the above circumstances, considering the road conditions of the standard sheet for comparison with the land of this case as the vertical duty (Ga), the fact that the appraiser

(2) Judgment on the second proposal

According to the result of the fact-finding conducted by the appraiser of this court, the transaction case claimed by the defendant was transacted on December 25, 2013, and there is a considerable interval of time than December 21, 2012 at the price base for the appraiser's evaluation of the land of this case. In order to select cases comparable to the land of this case and there are no special circumstances, the appraiser may recognize the fact that he selected and assessed the F land of Gangseo-gu Seoul Metropolitan Government as a compensation advance for the purpose of litigation. Therefore, it is difficult to deem that the appraiser's failure to reflect the above transaction case claimed by the defendant is unlawful.

(3) Judgment on the third proposal

As long as it cannot be confirmed because there was no evidence showing the standard point of time of appraisal of the previous assets claimed by the Defendant, the appraisal result of the appraiser cannot be deemed unlawful solely on the ground that there is a difference between the appraisal result of the previous assets and the appraisal result of the appraiser.

(3) Ultimately, in full view of the aforementioned circumstances, KRW 1,270,323,40,00 in total, according to the appraiser’s appraisal result, shall be assessed as the liquidation amount.

C) the starting point of counting payment obligations and damages for delay;

(1) Under Article 47 subparag. 1 and 2 of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 12116, Dec. 24, 2013; hereinafter “Urban Improvement Act”), a project implementer shall liquidate in cash land, buildings or other rights within 150 days from the date when an owner of land, etc. fails to file an application for parcelling-out or withdraws an application for parcelling-out, according to the procedures prescribed by Presidential Decree. Here, when an obligation to pay liquidation money arises for the owner of land, etc., such as failing to file an application for parcelling-out or withdrawing an application for parcelling-out before the expiration of the period for filing an application for parcelling-out, the period when an obligation to pay liquidation money arises shall be deemed to be “the following day of the expiration of the period for filing an application for parcelling-out determined by the project implementer pursuant to Article 46 of the Urban Improvement Act” (see, e.g., Supreme Court Decisions 2008Da37780, Oct. 9, 2010

(2) As seen earlier, the Defendant’s obligation to pay settlement money to the Plaintiff from December 21, 2012, which was the date following the date of application for parcelling-out from November 1, 2012 to December 20, 2012, and the Defendant is obliged to pay damages for delay from the date when 150 days elapsed thereafter.

2) Claim for return of unjust enrichment equivalent to the interest on relocation expenses

A) The legal relations between a reconstruction maintenance project association and its partners established under the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents are governed by the relevant Acts and subordinate statutes or the articles of association, a resolution of a general meeting of partners or an agreement between the association and its partners, unless otherwise stipulated by the relevant provisions or the agreement, and thus, even if a partner lost his/her membership status, he/she does not have an obligation to return retroactively the profits gained from the member's status as a member (see Supreme Court Decision 2009Da32850, 32867, Sept. 10, 2

B) The Plaintiff acquired the status of a cash liquidation on December 21, 2012; the Defendant concluded the instant construction contract with the contractor for reconstruction apartment, agreed to bear the interest on the moving expenses of union members, including the Plaintiff, at the time of signing the instant construction contract; the Defendant directly procured the moving expenses of union members from the financial institution without guarantee of the contractor from the financial institution; and the interest on the basic moving expenses was paid by the Defendant to the contractor by the date whichever comes earlier between the expiration date of the designation period of moving union members or the actual moving date; the Defendant bears the obligation to return the interest on the moving expenses of the union members to the contractor in the form of a construction contract including the amount of the interest on the moving expenses of the union members pursuant to the instant construction contract; and the interest on the loans after the instant alteration contract was paid directly by the Defendant

C) Thus, the plaintiff, as a member of the defendant's association, offered the real estate owned by the defendant to the defendant as well as acquired profits equivalent to the interest on the moving expenses provided by the Si Corporation as a member of the association in accordance with the agreement with the defendant. Thus, unless there is any provision, resolution or agreement that the plaintiff should return the interest on the moving expenses paid to the plaintiff retroactively if the plaintiff loses a member's membership, it cannot be said that the plaintiff has a duty to naturally return the profits equivalent to the interest on the moving expenses already acquired in the member's position as a member of the association because the plaintiff lost a member's member's status to the defendant. Furthermore, in light of the fact that the plaintiff's performance of its duty as a member of the association, such as providing and relocating the real estate for the implementation of the defendant's business, while the plaintiff cannot gain profits from the business of the association by losing a member's status, it cannot be said that the plaintiff's holding the interest equivalent to the interest on the moving expenses acquired as a member of the association as it is against the principle of equity

D) However, even if the Plaintiff does not have an obligation to return retroactively the interest equivalent to the interest on the loan for moving expenses obtained in the position of a member, it is reasonable to determine that the Plaintiff can hold the interest equivalent to the interest on the loan for moving expenses in the position of a member for the following reasons, i.e., the Plaintiff’s payment of interest on the Plaintiff’s moving expenses on behalf of the contractor or the Defendant is premised on maintaining the status of a member. Thus, the Plaintiff is not obligated to pay the interest on the Plaintiff’s moving expenses from the time when the Plaintiff lost its member status. (3) If the Plaintiff is exempt from the interest on the loan after the Plaintiff lost its member status, the interest would eventually be transferred to the owners of lands, etc. remaining as a member, and if it is against equity, it is reasonable to determine that the Plaintiff can hold the interest equivalent to the interest on the moving expenses for the period during which

E) Therefore, the Plaintiff’s assertion is without merit on the premise that the Defendant is also liable to pay interest on loans from March 20, 2014 to April 10, 2014, which was after the Plaintiff became a cash clearing agent and lost its membership.

3) Claim for restitution of unjust enrichment on the instant land

A) Article 107(1) of the former Local Tax Act (amended by Act No. 12153, Jan. 1, 2014) provides that a person who actually owns property as of the tax base date for property tax is liable to pay property tax. Notwithstanding Article 107(2) of the same Act, any of the following persons as of the tax base date for property tax is liable to pay property tax, and subparagraph 5 of the same Article provides that a person is liable to pay property tax (see, e.g., Local Tax Act amended by Act No. 12153, Jan. 1, 2014). If a trustee completes the registration of transfer of ownership of a real estate under a trustee’s trust, the ownership is entirely transferred to the trustee inside and outside of Korea, and is not reserved from the truster’s internal relationship with the truster. Nevertheless, insofar as the Local Tax Act clearly provides that the truster is liable to pay property tax on the trust property under the name of the trustee under the Trust Act, the truster’s actual right to manage and dispose of the trust property and its profits are not vested with the beneficiary (see, 201.

B) Therefore, even if the Plaintiff completed the registration of transfer of ownership on the instant land under the name of the Defendant, since the property tax imposed in 2010 and 2013 was obligated to pay by the Plaintiff, the Plaintiff’s assertion is without merit.

D. Sub-committee

Therefore, the defendant is liable to pay the settlement money of cash 1,270,323,400 won and damages for delay from the date when 150 days elapsed from December 21, 2012 when the plaintiff was in the status of a cash clearing agent, unless there are special circumstances to the plaintiff.

3. Judgment on the defendant's defense

A. Summary of the defense

(i) Deductions of rearrangement project costs;

Considering the fact that the Defendant, including the Plaintiff, continued a reconstruction improvement project, could have been imposed on the costs of the rearrangement project incurred prior to the forfeiture of membership, that the reconstruction improvement project is made out of the financial resources of the association members, and that the obligation to bear the costs of the rearrangement project is naturally constituted as a result of the reconstruction improvement project, and that the imposition by the resolution of the general meeting is not necessarily required, the Plaintiff, as the owner of the land within the project area in this case, is obligated to pay the costs of the rearrangement project, etc. required for the project in this case to the Defendant pursuant to Articles 20 and 61 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (hereinafter “Urban Improvement Act”) and Article 10 of the Defendant’s Articles of Incorporation. Therefore, the Plaintiff is obligated to pay the Defendant the share of the rearrangement project costs

(ii) defenses on deduction of financial expenses for moving expenses;

Upon entering into a contract for construction work with a contractor on October 28, 2007, the Defendant agreed that the contractor may have the Defendant’s partner obtain a loan for moving expenses from the financial institution under the name of the Defendant’s partner, and the construction company shall pay the interest on behalf of the partner. The Plaintiff acquired profits equivalent to the interest on moving expenses provided by the contractor according to an agreement with the Defendant. The Defendant bears the obligation to return the interest on moving expenses enjoyed by the members, including the Plaintiff, to the contractor, including the amount of the construction contract. Accordingly, the Plaintiff shall return to the Defendant the benefit equivalent to the interest on moving expenses received by the Plaintiff as a partner.

3) The defense of deduction of the maximum maximum debt amount of the establishment registration

The National Bank completed the establishment registration of a mortgage over the instant land of KRW 398,00,000 with regard to the claim for the said loan against the Plaintiff as the secured debt. Therefore, the maximum debt amount of the said mortgage should be deducted from the liquidation amount.

4) Concurrent performance defenses

The Defendant is obligated to pay the liquidation amount simultaneously with the cancellation of the registration of the establishment of a neighboring mortgage on the instant land established by the Plaintiff.

B. Determination

1) Determination on the defenses against rearrangement project costs

A) Sharing of expenses by persons subject to cash settlement;

(1) Article 60 of the Urban Improvement Act provides that a project implementer shall bear the cost of a rearrangement project, except as otherwise expressly provided for in the Urban Improvement Act or other Acts and subordinate statutes. Article 61 of the Urban Improvement Act provides that a project implementer may impose and collect the difference between the cost of the rearrangement project and the income accrued in the course of implementing the rearrangement project from the owner of the land, etc. as a charge, and the necessary matters shall be

(2) Meanwhile, a partner who became subject to cash settlement due to the failure to apply for parcelling-out or withdrawal of project costs, etc. falls under the requirements stipulated in Article 47 of the Act on the Maintenance of Urban Areas and Dwelling Conditions and the articles of association of an association (see, e.g., Supreme Court Decisions 2009Da81203, Aug. 19, 2010; 2008Da91364, Jul. 28, 2011). Therefore, inasmuch as a partner becomes subject to cash settlement and loses his/her status as a partner, the partner is also exempted from the duty to pay expenses, i.e., project costs, etc. (see, e., Supreme Court Decision 2010Da47469, 47476, 4783, May 10, 2012). Moreover, a cooperative between its partners under the Urban Improvement Act, as a matter of course, loses its legal status as a partner or its articles of association, and is not subject to an agreement or agreement.

(4) In full view of the aforementioned legal principles in the contents, form, and system of the relevant laws and regulations, a cooperative, which is a project implementer under the Urban Improvement Act, may impose and collect the difference between the income accrued from a rearrangement project and a rearrangement project from its members pursuant to Article 61 of the Urban Improvement Act (However, according to Article 24(3)3 of the Urban Improvement Act, the amount and method of collection of expenses under Article 61 of the Urban Improvement Act must undergo a resolution of a general meeting). However, if a cooperative member becomes a person subject to cash settlement due to meeting the requirements, such as Article 47 of the Urban Improvement Act, it is no longer in the position of a cooperative member, and it is impossible to impose expenses under Article 61 of the Urban Improvement Act. Of the profits or expenses that a person subject to cash settlement was incurred prior to

Only where the articles of incorporation, resolution, agreement, etc. provide for the return of loss in advance, it is reasonable to view that the liquidation procedure, etc. as provided in Article 47 of the Urban Improvement Act may be liquidated or seek the return separately.

B) Considering the following circumstances with respect to the duty to pay rearrangement project costs, the Defendants, who lost their membership as a person subject to cash settlement, cannot be deemed to have a duty to pay to the Plaintiff a certain percentage of the project costs spent during the period during which they maintained their membership status. Therefore, the Defendant’s defense is without merit without further review.

① As seen earlier, the Plaintiff’s status as a member was lost due to the Plaintiff’s becoming a person subject to cash settlement. There is no evidence to acknowledge that the Defendant previously stipulated in its articles of incorporation, resolution, agreement, etc. that the person subject to cash settlement should return the benefits acquired by the Plaintiff, such as the portion of the project cost incurred until the cause for cash settlement arises, or that the Defendant stipulated matters concerning the project cost and details of allocation to be borne by the person subject to

② In addition, according to Article 24(3)3 of the Urban Improvement Act, and Article 34(2) of the Defendant’s Articles of Incorporation, the amount and collection method of the rearrangement project cost, including the details of allocation for each member of the project cost, shall undergo a resolution by the general meeting. The procedure for imposing the rearrangement project cost for each member shall also undergo a resolution by the general meeting. There is no evidence that the Defendant had passed a resolution by the general meeting on the total amount

(3) In addition, although Article 7(1) of the Defendant’s articles of association provides that “A cooperative shall faithfully notify and publicly notify the members and interested parties of the matters concerning the rights and obligations of its members (including a change in matters).” However, there is no evidence to deem that the Defendant, prior to the payment of settlement money, knew of the fact that the persons subject to cash settlement are also obligated to pay the rearrangement

④ In addition, Article 61(1) of the Urban Improvement Act provides that the difference between the income accrued in the course of implementing a rearrangement project and the income accrued in the course of implementing a rearrangement project may be collected as a charge, and in order to impose a charge on a person subject to cash settlement, the income accrued in the course of implementing the rearrangement project shall be calculated. In addition, it is difficult to objectively calculate the income accrued from the project, such as the project in this case, and in particular, if the amount of the charge is calculated according to the ratio of individual asset for all the project cost incurred at the time as of a specific point, it may result in unreasonable result that the income accrued in the process

2) Determination on the defense of deduction of financial expenses for moving expenses

A) This part of the Defendant’s defense is understood to the effect that the Defendant’s defense is offset against the Plaintiff’s settlement money claim against the Defendant with a refund claim equivalent to the interest on the Plaintiff’s moving expenses paid by the Defendant on behalf of the Plaintiff. Therefore, the said defense is to be determined by regarding the offset claim

B) Although the Plaintiff may hold a profit equivalent to the interest on loans during the period during which he/she maintains his/her membership as a member, the interest accrued after he/she loses his/her membership shall be borne by the Plaintiff, as seen earlier.

C) However, the Plaintiff paid interest on the relocation expense loan from March 208 to December 26, 2013 (from November 2013, 2013) to the time limit for the Plaintiff’s loan from financial institutions. Since the Defendant bears interest from that time to March 20, 2014, the Plaintiff’s right to claim the return of unjust enrichment for the amount equivalent to the interest that the Plaintiff is obligated to pay after the Plaintiff lost its member’s status is the contractor for the interest up to November 2013 and the Defendant only for the interest accrued thereafter. Therefore, unless the transfer procedure of the assignment of the claim for the return of unjust enrichment held by the Corporation takes place, the Defendant cannot assert to the Plaintiff the right to claim the return of unjust enrichment for the amount equivalent to the interest paid by the Corporation instead.

D) However, there is no evidence to prove that the procedure for transferring the claim regarding the right to claim restitution of unjust enrichment of the contractor does not exist (where the Defendant paid interest on moving expenses borne by the contractor to the contractor, and thus the contract between the Defendant and the contractor was concluded, no evidence exists to deem that the contractor notified the Plaintiff of the transfer of unjust enrichment). The Defendant may only exercise the Plaintiff’s right to claim restitution of unjust enrichment against the interest accrued after December 2013 paid to the Plaintiff.

(e) As for the Plaintiff’s moving expenses, the amount of interest of KRW 12.15,15,06, KRW 20,18,490 on January 2014, KRW 20,18,490 on February 20, 184, KRW 188,490 on March 20, and KRW 1,073,475 on March 20, 2014, KRW 30, KRW 360 on April 28, 2014 + KRW 160 on April 28, 2014 + 205 (the amount of interest of KRW 40, KRW 360 on April 28, 2014) + KRW 30, KRW 168, KRW 404 on the same day 】 (the amount of interest of KRW 50, KRW 160 on April 28, 2014) 】 (the amount of interest of KRW 305, X 1605,2737.285

F) Therefore, this part of the defendant's defense is justified within the above scope of recognition.

3) Determination on the defenses against the maximum amount of debt regarding the registration of the establishment of a neighboring mortgage and the simultaneous performance defense

A) In cases where a project implementer bears the obligation to pay liquidation money to a landowner of land, etc. under Article 47 of the Urban Improvement Act, under the principle of fairness, the owner of land, etc. bears the obligation to transfer ownership of land, etc. to the project implementer in a state where no restriction on rights is imposed, and in principle, the obligation to transfer ownership without registration of restriction on rights and the obligation to pay liquidation money to the project implementer is in a simultaneous performance relationship (see Supreme Court Decision 2008Da37780, Oct. 9,

B) On April 10, 2014, the Plaintiff repaid KRW 332,366,768 of the secured debt of the right to collateral security to the National Bank, and accordingly, revoked the registration of creation of a mortgage on April 4, 2014, and the said land.

The fact that the registration of transfer of ownership based on the trust held in the name of the defendant has been completed, and the fact that the plaintiff delivered the above land to the defendant is recognized earlier.

4) Therefore, the Defendant was obligated to cancel the registration of establishment of a neighboring bank in the name of the National Bank, which was completed on April 11, 2014, and pay the liquidation money at the same time until the Plaintiff cancelled the registration of establishment of a neighboring bank on the instant land (not later than that time, losses for delay regarding liquidation money). However, as seen above, the registration of establishment of a neighboring bank was cancelled, and the ownership transfer registration based on the trust was completed in the name of the Defendant, and as long as the said land was delivered to the Defendant, the Defendant’s defense of deduction and simultaneous performance defenses

C. Sub-committee

The Defendant is obligated to pay to the Plaintiff the amount of KRW 1,268,626,605 remaining after offsetting the settlement money of KRW 1,270,323,40 and the damages for delay calculated at each rate of 5% per annum as stipulated in the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings, which is the date of the instant judgment, which is deemed reasonable for the Defendant to dispute the existence or absence of the obligation and the scope thereof from April 29, 2014, which is the date of the instant judgment, until the date of full payment.

4. Conclusion

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

Presiding Judge, Judge Park Jung-chul

Judge Lee Jin-hun

Judges Park Jong-young

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.