(Transfer) 2013Na3557 Services costs

Phonenet Co., Ltd.

A Regional Housing Association

slvers, slves, M

Jeonju District Court Decision 2012Gahap6805 Decided October 23, 2013

September 4, 2014

October 2, 2014

1. Of the judgment of the court of first instance, the part of the judgment against the defendant ordering payment of KRW 879,598,502 to the plaintiff as well as KRW 5% per annum from February 14, 2012 to October 2, 2014, and KRW 20% per annum from the next day to the date of complete payment, shall be revoked, and the plaintiff's claim corresponding to the above revoked part shall be dismissed.

2. The defendant's remaining appeal is dismissed.

3. Of the total litigation costs, the portion arising between the Plaintiff and the Defendant out of the total litigation costs shall be ten minutes, and the remainder shall be borne by the Plaintiff, the Defendant, respectively, and the portion arising from the participation in the lawsuit shall be ten minutes, and that portion shall be one of

A. The remainder shall be borne by each of the Defendant’s Intervenor.

1. Purport of claim

The defendant shall pay to the plaintiff 888,694,002 won and the amount equivalent to 5% per annum from February 11, 2012 to the service date of a duplicate of the complaint of this case, and 20% per annum from the next day to the day of complete payment.

2. Purport of appeal

In the judgment of the court of first instance, the part against the defendant shall be revoked, and the plaintiff's claim corresponding to the above revoked part shall be filed.

1. Basic facts

A. The plaintiff is a juristic person that carries out the sales agency business and advertising agency business of real estate, and the defendant is a regional housing association established under the Housing Act to carry out the business of newly constructing and selling apartment units on two lots of land outside the Yong-gu, Busan Metropolitan City (hereinafter "the business of this case"), and C (hereinafter "C") is a juristic person delegated by the defendant and delegated by the defendant to carry out the business of this case.

B. On March 24, 2011, the Defendant and C entered into a sales agency contract with the Plaintiff for the instant project (hereinafter “instant contract”). The main contents are as follows.

Article 1 [The purpose of the contract for sale by proxy is to suspend the business of the Plaintiff’s sales by proxy and to promote mutual benefits between the Plaintiff and the Plaintiff’s professional marketing activities and to promote the sale by proxy (if the Plaintiff did not carry out the business of the Plaintiff’s sales by proxy). Article 2-1 of the contract for sale by proxy, the Defendant and C shall grant the Plaintiff the authority to sell the entire objects of sale by proxy at the same time as the contract for sale by proxy (if the business of the Plaintiff’s sales by proxy is 0) and other overall activities related to the promotion of sale by proxy, including the following: 0-day sales by proxy, 0-day sales by proxy and 0-day sales by proxy, 0-day sales by proxy and 0-day sales by proxy, 40-day sales by proxy and 0-day sales by proxy, 40-day sales by proxy and 5-day sales by proxy). The period of the Plaintiff’s performance of the business of sale by proxy shall be as follows:

C. Meanwhile, on April 28, 2011, the Defendant’s Intervenor (hereinafter “Supplementary Intervenor”) was established under the name of E (F prior to the name of each name) as the wife of C’s representative D. On April 29, 2011, the following day entered into a sales agency contract with the Defendant and C on the same content as the instant contract. From May 11, 2011 to October 11, 201, the Defendant paid KRW 1.77,98 million to the Intervenor as the sales agency fee of the instant project.

D. As to the instant business, the Defendant sold 341 households until April 28, 201, and 70 households from the following day to October 1 of the same year, and sold a total of 411 households from March 24 to October 11 of the same year, and the first and second down payment was deposited in the head of the Defendant or C’s passbook and issued a letter of undertaking.

[Reasons for Recognition] Facts without dispute, Gap evidence Nos. 1, 2, 3, 6, 15, Eul evidence No. 3 (including each number, hereinafter the same shall apply), the purport of the whole pleadings

2. The parties' assertion and judgment

A. The parties' assertion

1) The plaintiff's assertion

Although the Plaintiff performed the sales agency business of the instant project pursuant to the instant contract and concluded a sales contract with the total of 341 households from March 24, 2011 to April 28, 2011, the Plaintiff was not paid the sales agency fee. As such, the Defendant shall comply with Articles 7 and 15 of the instant contract to the Plaintiff.

D) Under the above 341 unit sales agency fee of KRW 1.54 billion [including value-added tax], 88,694,002, excluding KRW 611,705,998, paid by the Defendant to the Plaintiff’s employees instead of the Plaintiff through the supplementary intervenor (=1.4 million - KRW 611,705,998), and the Defendant is obligated to pay damages for delay from February 11, 2012, 2012, which was 7 days after February 3, 2012, the date on which the Plaintiff’s above commission was claimed against the Defendant.

2) The defendant's assertion

The plaintiff or the plaintiff's employees did not carry out the sales agency business of the project of this case, and all of the plaintiff's employees carried out the sales agency business of this case as employees of C or the defendant joining the defendant, so the defendant is not obligated to pay the plaintiff the sales agency fee under the contract of this case

B. Determination

We examine whether the Plaintiff entered into a sales contract by performing a sales contract through the Plaintiff’s employees from March 24, 201 to April 28, 2011.

Comprehensively taking account of the respective descriptions of evidence Nos. 1, 3, and 4 and the purport of the entire pleadings, it is recognized that: (a) from March 24, 2011 to April 28, 2011, money was paid under the name of C or an assistant participant in the name of C or an employee who performed the said sales agency business; and (b) there is no expense paid in the name of the Plaintiff or the accounts in connection with the said sales agency business; (c) G and H among the above employees, prepared a written confirmation that they performed the sales agency business concerning the instant business as an assistant participant; and (d) some of the employees who performed the sales agency business including the Plaintiff I were issued a retirement certificate, etc. from the assistant participant.

on the other hand, the evidence cited above 5, 13, 14, 22, 24, 25, 30

In full view of the witness J and I of the first instance trial and the purport of the whole testimony and arguments of the witness I of the first instance trial, the following reasons are recognized.

① On March 31, 2011, the Plaintiff’s auditor recruited an employee to carry out the sales agency business of the instant project, and the I and its employees carried out the sales agency business from the Staff on March 3, 201, prior to the establishment of an assistant intervenor, and from March 31, 201, the sales agent’s down payment was deposited into the Defendant’s trust company account.

② A business report on the sales agency of I and the above employees was prepared from March 27, 201, and K reported on the sales agency of the instant project from March 30, 201 to C employees who were the executing agent of the instant project from March 30, 201. In the instant case where the Plaintiff filed a complaint against the Defendant’s president, the representative D, etc., the said K was present at the investigative agency as a witness and stated that the Plaintiff performed its duties as the Plaintiff’s employee.

③ Most of the employees recruited I knew that they were belonging to the Plaintiff, and was aware that their salaries were paid from the Plaintiff. They did not know that the company to which they were employed was changed from the Plaintiff to the Intervenor.

④ In a case on which a complaint was filed by the Plaintiff due to fraud, etc., D, the representative of C and the actual operator of C’s auxiliary intervenor, stated that “at the time of investigation by the investigative agency,” was drafted for the first time on March 24, 2011, the Plaintiff recruited employees through I and performed the sales business from March 25, 201, and that “the parties finally completed the said contract and completed all seals” around April 10, 201.

⑤ Although the instant contract was drafted as a patrol officer on April 201, 201, the date of preparation was recorded retrospectively on March 24, 2011. This case’s contract was made to the first patrol officer on April 201 due to the Defendant’s establishment procedure, etc.

Although the preparation of the contract was completed, it seems that the Plaintiff actually performed the sales agency business under the contract of this case prior to the date of completion of the contract of this case and recognized the contractual effects on that part.

④ The representative director of M transferred the business right to the instant project site to the Defendant because he was unable to raise funds in the instant project site due to the failure to implement the new construction project of the building, and thereafter, D directly sought J and asked the J as to whether the amount of the sales agency fee to the Plaintiff is reasonable.

7) On January 2, 2013, the Defendant recognized that the Plaintiff’s employees or the sales team conducted the sales agency business of the instant project as the main axis after concluding the instant contract between the Plaintiff, Defendant, and Defendant C on the preparatory documents and the first legal date for pleading, and before the establishment of an auxiliary intervenor.

In full view of the foregoing circumstances, it is reasonable to view that the Plaintiff entered into a sales contract by performing the sales agency business of the instant case through the Plaintiff’s employees from March 24, 201, when the instant contract was concluded, to April 28, 201, before the date of entering into the sales agency contract with the auxiliary intervenor as a party to the instant project.

Meanwhile, at the time of the instant contract, the Plaintiff, the Defendant, and C confirmed the details of the Plaintiff’s request for the payment of the sales agency fees in cash within seven days from the filing date of the claim (Article 7), and the contract deposit is deposited into the passbook with the Defendant (international trust) and the Defendant agreed to pay the Plaintiff the fee of KRW 4 million per household (Article 15 separate sheet) by recognizing that the contract was concluded, and the Defendant sold the instant business to the Plaintiff by April 28, 201. The Defendant sold the 341 household until April 28, 201, and both the 1 and 2 down payment are deposited into the Defendant or the passbook and issued a letter of undertaking, according to the overall purport of the statement and the pleading as set forth in the evidence No. 4-1 as well as the entire purport of the pleading as follows.

On February 3, 2012, it can be acknowledged that the above postal item has been delivered to the Defendant on February 6, 2012, by sending a content-certified mail demanding the Defendant to pay the sales agency fee under the instant contract. Thus, the Defendant, barring any special circumstance, provided that the Plaintiff is obligated to pay the Plaintiff the sales agency fee of this case from March 24, 201 to April 28, 2011, KRW 1,540,000 [including value-added tax: KRW 341 householdsx 4.4 million per household sales agency (including value-added tax) for the 341 household unit, which was sold by the Plaintiff after performing the sales agency business of this case from March 24, 2011 to April 28, 2011, KRW 618,705,998 (including value-added tax) to the Plaintiff’s employee on behalf of the Plaintiff, KRW 205,7081,9816.681.6

3. Determination as to the defense, etc. of the defendant and the supplementary intervenor

A. The defendant's assertion on the termination of the contract and the judgment thereof

The Defendant asserts to the effect that, as the instant contract was concluded on April 13, 2011, it is unreasonable for the Plaintiff to claim a sales commission for all of 341 households.

However, as to whether the contract of this case was terminated on April 13, 201, the statement of Gap evidence Nos. 6 and Eul evidence Nos. 4 alone is insufficient to acknowledge it, and there is no other evidence to acknowledge it. Thus, this part of the defendant's assertion is without merit without any need to further examine the remaining points.

B. Defendant’s assertion of deduction of expenses and determination thereof

The defendant, in addition to the part of the plaintiff's person, also out of the expenses for the sales of the business of this case

The employee benefits amounting to KRW 536,916,535; KRW 7,206,00; KRW 153,495,210; KRW 3,294,470; other operating expenses; KRW 3,364,660; KRW 11,375,940; KRW 17,56,00; KRW 17,51,000; KRW 20,050; KRW 534,100; and KRW 534,100; and KRW 534,915; and KRW 754,803,915; and KRW 15,000; and KRW 3,364,60; and KRW 3,294; and KRW 3,294; and KRW 3,470, other operating expenses; there is no reason to support the Intervenor’s payment. Furthermore, there is no reason to support the Intervenor’s payment.

C. The supplementary intervenor's counterclaim

1) The supplementary intervenor's assertion

The Intervenor: (i) 611,705,998 won for personnel expenses (i.e., personnel expenses of a person who was paid by the Intervenor at the time of the first instance trial; (ii) 61,705,98 won for personnel expenses of a person who was paid by the Plaintiff at the time of the first instance trial; (iii) 7 million won for the Plaintiff’s employees; (iv) MPM commission, which is paid in return for introduction by a real estate agent or a general individual, by a sales agent, for its members or a seller; (iv) 139,828,200 won for all taxes and public charges; (v) 7,206,200 won for office equipment; (v) 3,294,470 won for expended goods; (v) 3,364,60 won for lodging expenses; and (v) 11,375,940, 107, 2015 won for sales in lots; and (v) 7, 10605 won for sales.

Meanwhile, under Article 7 of the instant contract, the Defendant and C are obligated to pay the Plaintiff the sales agency fee. The Defendant and C’s obligation to pay the said sales agency fee to the Plaintiff is a joint and several obligation or an indivisible obligation. However, around August 27, 2014, C acquired all the claims, such as the above unlawful gains return claim from the supplementary intervenor, and offset the Plaintiff’s claim against the above claims on an equal amount of the Plaintiff’s sales agency fee with the above claims around that time. Since the effect of the extinguishment of the obligation due to the offset is limited to the obligor jointly and severally liable or the Defendant, which is an indivisible obligor, the Plaintiff’s claim against

2) Determination

A) Part on personnel expenses

The Intervenor asserts that there was a claim for return of unjust enrichment regarding N, who is an employee of the Plaintiff, for personnel expenses of KRW 611,705,998 against the Plaintiff (i.e., personnel expenses of KRW 611,705,998, which the Plaintiff was paid by the Intervenor at the time of the first instance trial + KRW 7 million on August 31, 2011, but the above personnel expenses of KRW 618,705,998 were deducted from the sales agency fee to be paid by the Defendant according to the Plaintiff as seen earlier, as such, the Intervenor’s allegation in this part is without merit.

B) Part of the MGM fee

The supplementary intervenor asserts that the plaintiff has a claim for return of unjust enrichment of KRW 139,828,200, the total sum of the MGM fees paid to the plaintiff separately from the above personnel expenses, and therefore, the fee of the plaintiff, "MGM" member or "MM member" member" member or individual member of the licensed real estate agent or individual member of the sales contract is deemed to mean the fee to be paid to the licensed real estate agent or individual in return for the introduction if the contract is concluded upon introduction by the member or individual member of the licensed real estate agent or individual, and there is no evidence to prove that the plaintiff agreed

Part of the assertion is without merit.

C) All kinds of taxes and public charges, rents for office equipment, and expendable goods, other operating expenses, other public charges and on-site operation expenses.

In full view of the respective statements and arguments stated in Eul evidence Nos. 3, 5, and 6, the supplementary intervenor paid various taxes and public charges 153,495,210 won, office equipment rent 7,206,00 won, and 3,294,470 won, other operating expenses, 3,364,660 won, and other public charges 1,056,000 won, and 20,050,000 won for on-site operation expenses, but there is no evidence to prove that the above expenses were spent for the plaintiff's on-site sales, not on-site sales, and on-the-spot sales, according to the above evidence, each of the above expenses can be acknowledged as having been incurred after May 201, 201, since the above expenses were not related to the plaintiff's on-site sales, it cannot be viewed that the plaintiff's obligation to pay taxes is no longer reasonable. Furthermore, even if the supplementary intervenor paid taxes to the plaintiff's on-site sales.

D) Part of the operating expenses of the public relations center

As seen earlier, the facts that the Defendant agreed to bear the cost of the model voucher operating expenses are as follows. In addition to the circumstances that the Intervenor stated that the cost of the promotion center operating the promotion center is the cost used in the operation of the promotion center, the cost of the promotion center operating expenses of the Intervenor’s assertion cannot be deemed as the cost borne by the Plaintiff. Even if the cost is the cost to be borne by the Plaintiff, there is no evidence to acknowledge that the cost was spent for the sales agency business of the Intervenor, not for the purchase agency business of the Intervenor. Thus, this part of the Intervenor’

and without reason.

E) Expenses for accommodation, public imposts for accommodation, food expenses (welfare expenses) portion

At the time of the instant contract, the Plaintiff agreed to bear all the personnel expenses (such as wages and food expenses) of the exclusive team in charge of sale in lots and the temporary promotion personnel. As seen earlier, the Plaintiff is entitled to the deduction of KRW 500,000,000, and the expenses of accommodation and public accommodation (welfare expenses) 1,595,500, which were used by April 28, 201, and the amount of KRW 2,095,50,000, which is the sum of the commission for sale in lots, should be deducted from the said commission for sale in lots.

In addition to the above money, the supplementary intervenor alleged that the supplementary intervenor additionally disbursed KRW 15,915,50 with 10,875,940 as well as 10,875,940 as accommodation expenses and 15,50 as food welfare expenses, but there is no evidence to prove that the above expenses were disbursed for the sales agency business of the plaintiff, the supplementary intervenor's above assertion is without merit.

D. Sub-determination

Therefore, the defendant is obligated to pay to the plaintiff 879,598,502 won (=881,694,002 won - 500,000 won - 1,595,500 won) and to pay damages for delay at each rate of 20% per annum as stipulated by the Civil Act from February 14, 2012 to October 2, 2014, where it is deemed reasonable for the defendant to dispute the existence or scope of the obligation to pay damages for delay from February 14, 2012.

4. Conclusion

Thus, the plaintiff's claim shall be accepted within the above recognition scope, and the remaining claims shall be dismissed as there is no ground. Since the judgment of the court of first instance is unfair with some different conclusions, the defendant's appeal is accepted in part, and it is against the defendant who ordered payment exceeding the above recognition amount among the judgment of the court of

The plaintiff's claim corresponding to the above revoked part shall be revoked, and the defendant's remaining claim shall be dismissed as it is without merit. It is so decided as per Disposition.

Judges Lee Jae-won

Judges Lee Young-ho

Judges Gok-ju