Plaintiff (Law Firm Mailing et al., Counsel for the plaintiff-appellant)

Defendant (Law Firm Dongin, Attorneys Shin Jae-in et al., Counsel for the defendant-appellant)

December 16, 2014

Suwon District Court Decision 2013Da36084 Decided November 21, 2013

1. Revocation of a judgment of the first instance;

2. All of the plaintiff's claims are dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

The defendant delivers to the plaintiff the building listed in the attached list (hereinafter “instant store”) and pays to the plaintiff 3,086,80 won with 20% interest per annum from the day following the delivery of the application for modification of the purport of the claim as of July 4, 2013 to the day of complete payment, and pays the money calculated at the rate of 6,138,100 won per annum from June 7, 2013 to the day of delivery of the above store.

2. Purport of appeal

The same shall apply to the order.

1. Basic facts

On December 21, 2012, the Plaintiff purchased the instant store from the New Real Estate Trust Co., Ltd. (hereinafter “New Real Estate Trust”) for KRW 801,00,000 and completed the registration of ownership transfer in the Plaintiff’s future on December 24, 2012. The fact that the Defendant occupies the instant store from June 12, 2007 to operate the instant store with the trade name “○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○”) is either disputed between the parties or may be recognized by comprehensively taking account of the overall purport of the pleadings as a whole.

2. The parties' assertion

A. The plaintiff's assertion

The Plaintiff is the owner of the instant store. The Defendant, the occupant of the said store, must deliver the said store to the Plaintiff, and also refund the unjust enrichment (the Plaintiff’s total rent of KRW 33,086,80 from December 24, 2012 to June 6, 2013, which is the date of acquisition of the Plaintiff’s ownership, KRW 33,086,80, and the monthly rent of KRW 6,138,100 from June 7, 2013 to the date of completion of delivery of the instant store) equivalent to the rent acquired while occupying and using the said store.

B. Defendant’s assertion

The plaintiff, knowing that the store in this case, which was owned by the real estate trust, is subject to sale through open competitive bidding, promises to provide money and valuables to the non-party 1 (the non-party 1) who is an employee in charge of the above business to the non-party 1 (the counter-party 1) who is an employee in charge of the above business, and subsequently participated in the above sale procedure by the plaintiff alone, and the store in this case was failed, and the plaintiff purchased the store in this case by entering into a free contract with the real estate trust, and eventually, the above sale contract constitutes a anti-social legal act that the plaintiff actively participated in the act of occupational breach of trust, obstruction of auction, etc. of the non-party 1 (the counter-party 1) who is an employee in charge of the real estate trust in this case, and thus,

3. Determination

The defendant asserts the invalidity of the grounds for registration as to the store of this case and contests the fact that the plaintiff owns the store of this case.

(a) Facts of recognition;

The following facts may be acknowledged in full view of the evidence Nos. 4, 8, 11, Eul evidence Nos. 1, 9, 12, Eul evidence No. 14-1, 2, 3, Eul evidence No. 15, part of Gap evidence No. 10, and the testimony and the whole purport of the pleadings by Non-Party No. 2 of the first instance court.

1) Nonparty 4 is in office as the director of the Housing Development Division of the Housing Construction Division of the Housing Construction Co., Ltd. (hereinafter “Estification”) which is the contractor of the △△△△△△△ building (hereinafter “the instant commercial building”) located in the Sinsi-si ( Address omitted), and Nonparty 1 (the Nonparty 1) is in office as the vice head of the Housing Management Team of the instant commercial building that is entrusted with the ownership of the instant commercial building, and is in charge of the public sale. The Plaintiff is a person in charge of the public sale, and the Plaintiff is the vice head of the Housing Management Team of the said commercial building who is composed of the buyers of the said commercial building.

2) On December 3, 2010, public auction, the contractor of the instant commercial building, was unable to receive the construction cost, etc. from the KC Industrial Development Co., Ltd., which was the executor, filed a lawsuit claiming the repayment of the construction cost by performing the public auction procedure for the stores, etc., the sales contract of the said commercial building was terminated among the above executor’s trust, and was rendered in the first instance judgment on October 19, 2012 (Seoul Central District Court Decision 2010Da124316).

3) The store of this case was No. 114 of the first floor of the commercial building of this case, and as the sales contract was terminated because Nonparty 3, who was the buyer, failed to pay the sales price of KRW 1,33,787,400, it became subject to public sale.

4) When the Plaintiff came to know that the store of this case was subject to public auction, it was awarded a successful bid at the lowest price. On November 21, 2012, the Plaintiff solicited Nonparty 4 and Nonparty 1 (the Nonparty 1) (the Nonparty 2) to pay 50,000,000 won for each of the instant stores as a honorarium if the Plaintiff would be awarded a successful bid for each of the public auction in the public auction and the trust in the public auction in the public auction in the public auction and the trust in the public auction in the public auction in the public auction in the public auction in Gangnam-gu Seoul, Gangnam-gu. on November 21, 2012.

5) Article 9(1) and (2) of the standards for the public sale of trust real estate is based on the method of an open competitive bidding. In this case, only a single competitive bidding shall be effective, and if a bid is conducted through an open competitive bidding, a negotiated contract may be concluded under the conditions of the next public auction prior to the commencement of the next public auction prior to the commencement of the auction.

6) On December 10, 2012, Nonparty 4 applied for a public auction on the instant store, and Nonparty 1 (person other than the Plaintiff) posted a notice on the “public auction notice”, which is the information on the public auction on the daily real estate trust website, one week prior to the commencement of the public auction, Nonparty 4 posted a notice on the “public auction notice” around December 20, 2012 to prevent others from participating in the public auction and allow the Plaintiff to make a single bid, and immediately deleted the notice on the “public auction notice” on the instant store, and on December 21, 2012, posted the said information again on December 21, 2012.

7) On December 21, 2012, the Plaintiff entered into a free contract with the Gan Real Estate Trust to purchase the instant store at KRW 801,00,000 for the purchase price, and completed the registration of ownership transfer with respect to the instant store in the future of the Plaintiff on December 24, 2012. The original sale price of the instant store was KRW 1,33,787,400, and the Plaintiff purchased the instant store at the minimum public sale amounting to 60%.

8) On May 26, 2014, the Plaintiff was indicted on the charge of attempted breach of trust as follows: “In collusion with Nonparty 1 (the Nonparty 4 and the Nonparty 1 (the Nonparty 1) who had occupational duty to make the Plaintiff take charge of the public auction in the trust of real estate in charge of the public sale of the instant store, thereby hindering the fairness of the auction by purchasing the instant store at a low price; and in order to obtain an amount equivalent to the difference between the case where the ordinary public sale procedure was carried out and causing property loss equivalent to the same amount in the trust of real estate;” and the joint principal offender of the crime of occupational breach of trust and the crime of occupational breach of trust, “the Plaintiff made an illegal solicitation to purchase the instant store at a low price (the Nonparty 1 (the Nonparty 1) and Nonparty 4, who promised to make an illegal solicitation but failed to pay 50,000,000 won each of the honorariums agreed to do so.”

9) On September 5, 2014, the Plaintiff was convicted of all the above criminal facts and was sentenced to eight months of imprisonment (the Suwon District Court 2014Gohap270), and the Plaintiff appealed and is still pending in the appellate trial (the Seoul High Court 2014No2856).

B. Determination

Where a representative of a corporation constitutes an act of breach of trust against a corporation, and the other party to a sales contract actively participated in an act of breach of trust, such as inducing or inducing the other party to such act of breach of trust, or participating in the whole process of such act of breach of trust, such sales contract may be invalidated as it constitutes an anti-social juristic act (see, e.g., Supreme Court Decisions 2010Da91831, Nov. 28, 2013; 2006Da47677, Mar. 26, 2009).

According to the above facts, in order to purchase the store of this case at a low price, the plaintiff made an illegal solicitation by promising the non-party 1 (the counter-party 1) who was in charge of the affairs related to the public auction to deliver 50,000,000 won for honorariums to the non-party 1 (the counter-party 1) who was in charge of the affairs related to the public auction. After that, the non-party 1 (the counter-party 1) violated his duties according to the public competition with the plaintiff and temporarily posted the information on the public auction of this case, and then deleted the information on the public auction of this case, thereby causing the risk of actual damage to the property of the re-real estate trust. In fact, the store of this case was sold to the plaintiff through a private contract to the minimum public auction of 801,000,000 won, which is the original selling price of 60%, and its danger was realized. In light of the above legal principles, the plaintiff's purchase of the real estate of this case is invalid.

C. Judgment on the Plaintiff’s assertion

1) As to this, the Plaintiff asserted that the public sale of the instant store was not an anti-social legal act because Nonparty 1 (the person in the counter-party counter-party counter-party counter-party counter-party counter-party counter-party counter-party counter-party counter-party counter-party counter-party counter-party counter-party counter-party counter-party counter-party counter-party counter-party counter-party counter-party counter-party counter-party counter-party counter-party counter-party counter-party counter-party counter-party counter-party counter-party counter-party counter-party counter-party counter-party counter-party counter-party counter-party counter-party counter-party counter-party to the above public sale and the sale of the instant store through the above free contract merely because the non-party 1 (the person in the counter-party counter-party counter-party counter-party counter-party counter-party counter-party counter-party counter-party) announced

2) Furthermore, the plaintiff leased the store of this case from the non-party 3, who was the buyer of the store of this case, and the defendant transferred this case to the non-party 3, and since the non-party 3 did not pay the sale price and the public sale of the store of this case was completed after the termination of the sale contract, the defendant constitutes an unauthorized possessor who has no right to occupy the store of this case, and there is no relation with the sale contract of this case. However, although the plaintiff's assertion that the purchase of this case's store of this case is invalid without any legal ground or against the concept of justice and social order against the will of interest and trust of the contractor, the defendant does not assert that he has a legitimate right to occupy the store of this case's purchase of this case's store of this case's non-party 3, who is the buyer of this case's non-party 3, and therefore there is no dispute about the ownership of the plaintiff's store of this case's non-party 3, who has an absolute legal act.

D. Sub-committee

Therefore, since the registration of transfer of ownership on the instant store in the name of the Plaintiff is invalid because there is no legitimate cause, it is so long as the Plaintiff cannot be deemed to have acquired the ownership of the instant store, the title holder who is the Plaintiff’s assertion, the Plaintiff’s respective claims of this case based on such different premise are

4. Conclusion

Therefore, each of the claims of the plaintiff in this case shall be dismissed as it is without merit. Since the judgment of the court of first instance is unfair with different conclusions, the defendant's appeal is accepted, and the judgment of the court of first instance is revoked and all of the claims of the plaintiff are dismissed. It is so decided

[Attachment Form omitted]

Judges Lee Jong-young (Presiding Judge) Lee Young-young's Award